George Wythe Review Fall 2021

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VOL. XIII NO. I FALL 2021 PATRICK HENRY COLLEGE


GEORGE WYTHE REVIEW

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GeorgeWythe Review

Vol. XIII • No. I • Fall 2021

A PUBLICATION OF THE AMERICAN POLITICS & POLICY PROGRAM OF PATRICK HENRY COLLEGE

Editor-in-Chief: Josiah J. Dalke Associate Editor: Riley T. Anderson Publication Editor: Celine C. Robishaw Research Editor: J. Calvin Klomparens Faculty Supervisor: Dr. Michael Haynes

PATRICK HENRY COLLEGE Purcellville, Virginia www.phc.edu Copyright © 2021 ISSN 2153-8085 (print) Fall 2021 • ii


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The George Wythe Review is an undergraduate journal dedicated to the integration of faith and reason in American domestic public policy. The editors of this journal recognize that contemporary domestic public policy is navigating the uncharted waters of rapidly advancing technology, an increasingly globalized political environment, and a bureaucratic federal government. The journal is a response to this climate, providing undergraduate students at Patrick Henry College with a venue to engage this climate through quality academic papers. In the vein of the journal’s namesake, the editors are committed to fostering an environment for discussion that enhances the mission of both the American Politics and Policy Program and Patrick Henry College. The George Wythe Review is published twice during the academic year by the American Politics and Policy Program of Patrick Henry College. Essays in the journal do not necessarily represent the views of Patrick Henry College, the editors, or the editorial board. The responsibility for opinions and the accuracy of facts in the essays rest solely with the individual authors. Direct all correspondence to the address below. Patrick Henry College 10 Patrick Henry Circle Purcellville, VA 20132 (540) 338-1776 georgewythereview@students.phc.edu All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means—electronic, mechanical, photocopying, recording, or otherwise—without the prior written permission of the copyright owner. Authors of the respective essays in this publication retain copyright privileges. Copyright © 2021 • Printed in the United States of America.

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C O________________ NT E NTS Vol. XIII • No. I • Fall 2021

Letter from the Editor

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Opportunity Zones: Panacea or Placebo for America’s Economic Ills?

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Cole R. Reynolds This paper studies the Opportunity Zones capital gains tax incentive by analyzing its structure, intended effects, and preliminary reforms. It finds that the policy currently does not meet its goals, but with some reforms it could more successfully fulfill the purpose for which it was enacted: the alleviation of poverty.

Bringing the Schoolhouse to the Jailhouse: Evaluating the Relationship Between Prison Education and Recidivism

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Isaac Z. Bock This study explores whether prisoner participation in correctional education programs results in reduced rates of recidivism compared to non-participants. It will perform secondary quantitative analysis of educational programs, post-release employment rates, and recidivism rates in literature from the last three decades. Ultimately, it finds that prisoners who enroll in educational programs while in prison are more likely to be employed and less likely to reoffend.

Operation Endgame: An Ethical Analysis of ICE’s Immigrant Detention and Deportation Process

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Cana D. Cossin This study seeks to answer the question whether the treatment immigrants receive in detention centers is ethical. To that end, this study performs secondary qualitative analysis on data from the United States Department of Homeland Security and Immigration and Customs Enforcement. The hypothesis of this study is that if detention centers adhered to guidelines, the way they treat immigrants would be ethical and they should remain in place. Fall 2021 • iv


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Contract Incentives: The Uniqueness of and Solution for Private Prisons

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James L. Elliott This study identifies different case studies from the United States and other countries that use contractual incentives other than per diem incentives and the effects of these novel prison programs. This study hypothesizes that focusing on performance and personnel incentives in contracts with private prisons is more effective in fostering safety for inmates, the eventual rehabilitation of those inmates, and decreased recidivism rates.

70 Section 504: How The Rehabilitation Act of 1973 Became the First Law to Ban Discrimination Against Individuals on the Basis of Their Disability Audrey A. Millhouse This paper evaluates Section 504 of the Rehabilitation Act of 1973, how it became law, and which public policy model best aids in understanding that process. It will test three different public policy models to discover which best simplifies the process behind Section 504, highlights the most important factors in that process, and offers an explanation for Section 504. Those three processes are the Three Streams Model, the Process Model, and Incrementalism. This paper concludes that while the Process Model provides a thorough description of the policymaking process, the Three Streams Model and Incrementalism best highlight the important factors behind Section 504 and provide compelling explanations for its causes and consequences.

Elderly Epidemic: Finding Culturally Suitable Solutions for Eldercare

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James M. Hodson This project seeks to answer how cultural individualism influences the effectiveness of formal institution-based and informal family-based eldercare in a society. This project found that cultural individualism, as present in America, proves a significant obstacle to effective informal care.

About George Wythe

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Acknowledgements

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Letter From the Editor Dear Readers, It is my pleasure to introduce to you this semester’s edition of the George Wythe Review. It truly has been an honor to serve as Editor-in-Chief of this project. This semester marks my 7th Semester working on the Review and I can honestly say that working on it has been one of the highlights of my experience at Patrick Henry College. Over that time, I have truly grown in research, writing, and editing skills. But having worked as Editor-in-Chief, I now know how much time and energy goes into this. In fact, if I was the only one on this project, this edition would have no words in it, let alone getting it to print. I want to recognize my fantastic board of editors that have assisted me through the last couple of months: Calvin Klomparens, Celine Robishaw, and Riley Anderson. These three, along with their respective staffs, have outdone themselves in ensuring that the George Wythe Review can be the best it can possibly be. Thank you for your commitment to the journal. We live in a society that is constantly bombarded with information. A simple glance at the smart phone or word search on Google will confirm this. In fact, we live in an age in which information is the ammunition against those people or ideas that operate contrary to our beliefs. One may only look at our current political climate to show this. As confusing as these times may be in understanding how truth fits in our world of political conflict, this all should not surprise us if we have any understanding of the nature of man. Men are relational creatures by nature, meaning that, as soon as we see an idea or group in which we identify, our natural tendency is to hold that idea or group with a tenacious grasp. Tribalism and identity politics – in one way or another – has always been part of mankind’s political structures. The only way to avoid this and actively pursue truth is to ask the tough questions and to seek truth outside of ourselves and our own experiences. This is the goal of the George Wythe Review: to gain a better understanding of issues in domestic politics by examining the evidence, rather than operating through various political assumptions with which we identify. I believe this vision is especially evident in this issue of the George Wythe Review. Our first study we present to you was written by Mr. Cole Reynolds, a previous Editor-in-Chief of this publication. He examines in his article the origin and nature of the Opportunity Zone’s capital gains tax incentive. He finds that the program, while a novel concept, does not meet completely its ends in providing alleviation of property. To this end, he offers several areas of reform that would best help the program meet that goal. The second study in this issue is by Mr. Isaac Bock. His article examines the United States’ efforts to reduce recidivism through prison education programs. Through secondary quantitative analysis, he finds that there exists a strong correlation between Fall 2021 • 1


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the two: as prisoners enroll in educational programs, they are less likely to break the law again. Ms. Cana Cossin presents our third study on analysis that is rather newer to the George Wythe Review: an ethical assessment of the Immigration Customs Enforcement’s detention and deportation program. She comes to the conclusion that ICE’s guidelines do present an ethical framework to pursue its job, assuming that they are adhered to. Our fourth study comes from Mr. James Elliot. He writes concerning the nature of private prisons in the United States criminal justice system. Through an examination of various case studies, he hypothesizes that private prisons, contrary to how some may believe, may actually present a safer and more effective alternative for prisoners and their rehabilitation. Ms. Audrey Millhouse comes with our fifth study as she considers Section 504 of the Rehabilitation Act of 1973 and how it became law. She examines several different policy making models and evaluates Section 504 through those models to help explain the provision’s causes and effects. She concludes that the Three Streams Model and Incrementalism best accomplish this. Our sixth and final study comes from Mr. James Hodson. He examines how cultural individuals influences the effectiveness of the United State’s Eldercare system. He concludes that this mindset poses and significant barrier in this department and creates a system of informal care that is not found in other cultures. I would finally like to thank the Collegiate Network for assisting us this semester. Their support for the George Wythe Review over the last several years has been much appreciated and we are grateful for their generosity. My hope is that in a small way, the George Wythe Review can spark a new kind of conversation in public forum, one that approaches a given topic through the lens of evidence and good argument rather than identity politics, confirmation bias, or just trying to be right. The later simply sees information as bullets. The former seeks to understand how our world works. So, let’s do it together! God Bless, Josiah Dalke Editor-in-Chief George Wythe Review

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Members of the Fall 2021 Journal

Josaih Dalke Riley Anderson

Celine Robishaw

Calvin Klomparens

Content Editors: Katie Goretcke Ethan LaBelle Neil David Mangrobang Ethan Snider Braedon Steiner

Publications Team Sarah Fox Lauren Hutson Meg Roberts

Research Staff Darius Franklin Anna Jankowski Kaitlan Michels Gabrielle Sakai Nick Storz Kaitlyn Tully Ronen Wyrick

Development Team Hannah Bruck Nikolas Frey Giancarlo Mandato Gage Neudigate

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OPPORTUNITY ZONES: PANACEA OR PLACEBO FOR AMERICA’S ECONOMIC ILLS? Cole R. Reynolds Abstract The Opportunity Zones (OZ) capital gains tax incentive is one of the most innovative tax reforms the United States has seen, not only due to the structure of the policy, but also because of its bipartisan support. Its novelty is the source of both great expectations and immense scrutiny. By analyzing structure, intended effects, and preliminary reforms, this study seeks to bring clarity to the discussion about the OZ incentive. The study finds that the policy currently does not meet its goals, but with some reforms, like the addition of reporting mechanisms and stricter qualification criteria, OZs can more successfully incentivize investment in economically distressed areas, and fulfill the purpose for which it was enacted: the alleviation of poverty, particularly in traditionally disadvantaged communities. ___________________________________

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Introduction Economically disadvantaged areas, which are generally minority communities, have traditionally had difficulty acquiring capital and attracting investments. Whether it was because of the blatant racism of Jim Crow era policies, like redlining and lending discrimination, or resistance to invest in areas that are considered highrisk because of their impoverished inhabitants, the vicious cycle of poverty has been particularly acute in these communities. A provision in the 2017 Tax Reform bill, referred to as “Opportunity Zone” (OZ), sought to target and mitigate this disadvantage by providing tax incentives for investors. The predominant question, nearly three years after its initial passage, is whether OZs are helping disadvantaged communities as they were designed to, or if they have devolved into a mere tax break for the wealthy. This study finds that, while opportunity zone policies have enjoyed bipartisan support and work well in theory, OZs do not help poor communities as much as lawmakers intended. The main proponent and sponsor of Opportunity Zones was Senator Tim Scott (R-SC). He describes the zones as “the tools that are needed to combat poverty across this nation” (Scott, 2020). Joining with Senator Scott, Republicans have overwhelmingly supported the measure for one reason or another. Many have viewed it as a way to let the private sector revitalize economically stagnated areas, rather than allowing government intervention to fill that gap. But some Republicans appreciated the policy merely because it was a tax cut. Either way, the principles of free-market investment and tax cuts were enough to rally Republicans behind the cause. Unlike most tax reforms, overwhelming Republican support did not scare away Democratic endorsement. Senator Cory Booker (D-NJ) was one of the staunchest supporters of the program, seeing it as a way to help disadvantaged communities and minorities. Most Democratic support came from state and local governments. D.C. Mayor Muriel Bowser and several other Democratic mayors have embraced the policy and gone to great lengths to implement it successfully (Homan, 2020). Bipartisan support does not mean total support, however. Democratic Congressional Representatives Rashida Tlaib (D-MI13) and Alexandria OcasioCortez (D-NY14) are the best examples of this fact. Not only have they voiced their displeasure with the program, but Rep. Tlaib proposed an amendment to prevent the IRS from being able to use federal funds to administer and enforce the incentive (Jagoda, 2020). They, along with many others on the left, have decried OZs by characterizing them as “another tax break for the wealthy,” that would continue the detrimental process of gentrification instead of revitalizing the local community (Wittenberg, 2020). These calls for repeal or reform have drained Democratic support for the measure. Even Sen. Booker signed onto a letter calling for reforms to Opportunity Zones so that they could not be manipulated to only benefit high-income investors Fall 2021 • 5


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(Dumain, 2019). He, and other Democrats, have become convinced that this tax incentive is just that, a tax incentive, not a program that leads to investment in impoverished communities.

Literature Review Opportunity Zones as a policy are still extremely young, so scholarship on them is also in its infancy and largely speculative. However, while the majority of politicians still support the policy, many economists have expressed great skepticism about the effectiveness of OZs. The American Enterprise Institute’s Dr. Stan Veuger’s most fundamental concern is that OZs are “using public policy to direct capital away from its most productive ends” (Veuger, 2020). He also takes issue with the way OZs target communities. Eligibility for the program is set up in a way that is greatly beneficial for local governments and big businesses, but “not particularly helpful for lowincome residents or unemployed people at the lower end of the wage scale” (Veuger, 2020). Ultimately, he asserts that “some share of the tax subsidy will wind up going to investment that would have occurred anyway, turning the program into an extraordinarily regressive tax cut” (Veuger, 2020). Other organizations and scholars like Brookings Institution, the Tax Foundation, and researchers at New York University (NYU) express similar concerns. Brookings finds that many structures designated as OZs fulfill the standard for qualification, but are not disadvantaged communities (Gelfond & Looney, 2018). They point to areas like college towns as the primary example. Most college students live below the poverty line due to low income, but are not underprivileged economically. The Tax Foundation had similar problems with the way OZs are administered, saying that they “redistribute rather than generate new economic activity, subsidize investments that would have occurred anyway, and displace low-income residents by increasing property values and encouraging higher skilled workers to relocate to the area” (Eastman et al., 2020). A study performed by researchers at NYU built on this critique when it found that OZs have had very little effect on employment opportunities in those areas (Atkins et al., 2020).

Research This split in opinion between politicians and economists can be explained by understanding the split between intent and effects. There are two fundamental questions at play. First, do OZ.s fulfill the purpose for which they were created, namely, the economic empowerment of disadvantaged communities? Second, are OZs economically beneficial in general? The second question is more difficult to assess because OZs are only one small portion of the tax code (not to mention the 6 • Fall 2021


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numerous other stimuli that drive the market), but the first question can be dissected. This question will be examined through an analysis of the law itself and the intent behind it, the effects of its implementation, and its most prominent critique.

The Statute The statute that enacted the OZ policy was H.R. 1 of the 115th Congress. The bill was designed to amend the U.S. tax code. The particular sections that are relevant to the OZ are Sect. 13823, Subchapter Z, Sections 1400Z-1 and 1400Z2. The policy contained in these sections was summarized as an “opportunity for U.S. investors to use a temporary capital gains deferral in exchange for investing the capital in distressed communities across the country” by Senator Scott (Scott, 2017). The way the statute does this is twofold: first, it designates how an area, and businesses in that area, qualify for OZ status; and second, it defines the specifics of the incentives and tax breaks.

Eligibility The statute defines an “Opportunity Zone” as “a population census tract that is a low-income community that is designated as a qualified opportunity zone,” (An Act to provide for reconciliation, 2018, p. 130). There is a two step process laid out in the law for designation as an opportunity zone. First, the chief executive of a state or territory (Governors of states, Mayor of D.C., etc.) must nominate the tract for designation in writing to the Secretary of the Treasury; and second, the Secretary certifies that nomination and officially designates the tract as an OZ (An Act to provide reconciliation, 2018, p. 130). There are some guidelines as to which census tracts can qualify to be designated as an OZ by their governors: The term “low-income communities” means any population census tract if—(A)the poverty rate for such tract is at least 20 percent, or (B)(i) in the case of a tract not located within a metropolitan area, the median family income for such tract does not exceed 80 percent of statewide median family income, or (ii) in the case of a tract located within a metropolitan area, the median family income for such tract does not exceed 80 percent of the greater of statewide median family income or the metropolitan area median family income. (New Markets Tax Credit, 2020) While there may be hundreds of census tracts that qualify under the previous definition, states can only designate 25% of their qualifying tracts as OZs (An Act to provide for reconciliation, 2018, p. 131). Fall 2021 • 7


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Even after 75% of all eligible tracts are taken out of consideration, not all businesses located in the designated OZs are eligible for the tax deferral. Only businesses which earn at least 50% of their gross income from Opportunity Zone activities qualify for the program (IRS, 2020, Q53). This means that if Amazon were to open a distribution center in an OZ, capital gains earned from, or invested in Amazon would not be eligible for the tax relief the program provides because Amazon earns over 50% of its gross income from outside the OZ.

Tax Incentives Tax incentives are the active provisions of the OZ policy. There are three ways investors receive relief from their capital gains tax burden. First, investors can defer taxes on capital gains which are reinvested into an OZ within 10 days of the sale which realized the gain. Second, if the investment in an OZ is maintained for several years, a percentage of the deferred gain can be excluded from tax liability. Third, if the investment is maintained for 10 years, the gains realized from the OZ investment are not taxed (Internal Revenue Service, 2020). The first benefit is fairly straightforward. Taxes on any capital gains reinvested into a qualifying OZ business or fund can be deferred until the OZ investment is sold. The benefit is a deferral of taxation and the ability to take advantage of the time value of money. All of the money an investor earned can continue to earn returns without the government taking a potentially productive portion of it. The second benefit stacks on top of the first. Not only will investors be able to defer taxes on their capital gains until they sell the interest, but they can also exclude ten percent of the original gain if they maintain the investment for 5 years. The excludable percentage goes up to 15% if the investment is maintained for 7 years (IRS, 2020). This provision works to incentivize longer-term investment in OZs. The final benefit is the most tantalizing for investors. On top of a deferral on capital gains taxes and a 15% exclusion on the original gain, if the investor maintains an investment in an OZ for at least 10 years, they will have no tax liability for the gains of that investment. If an investor keeps their money in an Opportunity Zone business for at least 10 years, whatever money they make on that investment is free from capital gains tax liability (IRS, 2020). To put numbers behind concepts, if an investor sold their stock in Amazon and earned $50,000 in capital gains, they could defer paying taxes on that gain if they reinvested that sum into a qualifying business inside an OZ within 180 days. If this investor then maintained the investment for 5 years, they could exclude 10% of the initial $50,000 from their taxable capital gains. That would shield $5,000 from taxes, making the new taxable figure $45,000. If the investor continued with the investment for another 2 years, for a total of 7 years, they could exclude an additional 5% from the initial gain, making the total exclusion 15%. Instead of being liable 8 • Fall 2021


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for taxes on the $45,000 figure, they would only owe taxes on $42,500. Finally, if they maintained the investment for a total of 10 years, they would only owe taxes on the $42,500 total and no taxes on whatever gain they earned through the OZ investment. Assuming an average of 10% growth annually, the investor would have a gross sum of $129,688 and would only owe capital gains tax on $42,500. The rest would be tax free. The benefits of this tax incentive are clear. The hypothetical investor mentioned above would have $87,188 shielded from tax liability under this policy. The deferral phase allows for more money to be productive in the market, the exclusion periods help cut down the liability on the original gain, and the final exemption allows the investor to keep from paying taxes on gains they earned through the OZ investment. Not only are investors incentivized to invest in OZs but they are rewarded for longterm investments too.

The Goal of Opportunity Zones Sen. Tim Scott articulated the underlying principles of the program best when he characterized the program as “an opportunity for U.S. investors to use a temporary capital gains deferral in exchange for investing the capital in distressed communities across the country” and that it “is an initiative that has the potential to positively impact up to 52 million Americans living in these communities,” (Scott, 2017). In another statement, he elaborated: I grew up in economically distressed neighborhoods, and I know that the last thing struggling communities need or want is the federal government telling them what their problems are or what their solutions should be. So, instead of taking a top-down approach to addressing poverty, Opportunity Zones empower our community leaders, mayors, and governors to come together to decide for themselves which of their neighborhoods should be designated to participate. (Scott, 2020) The intent of the incentives discussed in the previous section was to lure the dollars of potential investors into Opportunity Zones and maintain them as longterm sources of capital. The theoretical and ideological bases of this policy are solid. American society has a problem; there are many areas across the U.S. that lack economic opportunity due to a lack of capital and historic cycles of poverty. Many solutions have been tried and continue to be tried to this day. Medicaid, government housing, and other social safety net programs try to help shield people from catastrophic failure, but they do not help them become successful. Most government programs that target poverty focus on mitigating the consequences of failure through alleviation instead of providing a pathway and the tools to achieve success. Fall 2021 • 9


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The Opportunity Zones program sought to reverse this trend. Instead of the government ameliorating poverty, OZs incentivize the private sector to provide opportunities for human flourishing. Where a young entrepreneur from a poor area may not have had the capital to start his business, OSs can act as a sweetener, attracting investment in his start-up where investors may have turned a blind eye in the past. Instead of the government collecting revenue and redistributing it as they see fit, this program allows for the market to distribute funds based on merit and opportunity. There is also a racial implication for the policy. Many of the tracts designated as opportunity zones are predominantly minority communities. This policy has been seen as a foil to the practice of redlining. Redlining is the “practice of mortgage lenders of drawing red lines around portions of a map to indicate areas or neighborhoods in which they do not want to make loans,” (Federal Reserve, 2020, p. 1). Redlining has taken place for both economic and racial reasons. Where redlining was the practice of denying loans, or investment, to a particular area due to economic and racial considerations, OZs incentivized investment in these areas for those exact reasons. This makes OZs a direct countermeasure to redlining, which significantly contributed to poverty in many areas.

The Impact It is one thing to have lofty goals for a policy; it is quite another to attain them. To examine the efficacy of Opportunity Zones, the impact of the policy must be analyzed. To do this, three questions must be asked: how much money has been invested; what kinds of things those funds are being invested in; and has that investment has led to an increase in employment, income, and wealth in the OZs? The analysis of these questions will be incomplete, however, as the policy has only been in place for 2.5 years and there are no enforcement or reporting criteria currently tied to the policy.

How Much is Being Invested? According to a study released by the White House Council of Economic Advisers in August of 2020, nearly $75 billion in private capital had been invested in OZs. They also found that “private equity investment in O.Z. businesses grew 29% relative to the comparison group of businesses in eligible communities that were not selected as O.Z.s” (The Council of Economic Advisors, 2020, para. 6). Novogradac, in an article published in April of 2020, asserts that investments in OZs have been accelerating as the policy matures and the Treasury Department has provided additional guidance to investors (Novogradac, 2020). On the negative side, the Tax Foundation found that OZs were “estimated to cost $1.6 billion in revenue from 2018-2027,” but that since the program is slated 10 • Fall 2021


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to run through 2047, the revenue impact could grow larger as more investors take advantage of the incentives (Eastman & Kaeding, p. 1).

Where is the Investment Going? The next step in assessing the impact of this policy is understanding where the $75 billion in investments are going. An article in the New York Times claims that these “billions of untaxed investment profits are beginning to pour into highend apartment buildings and hotels, storage facilities that employ only a handful of workers, and student housing in bustling college towns, among other projects” (Drucker & Lipton, 2019). An Urban Institute study found similar results, saying that “the incentive’s structure makes it harder to develop projects with community benefit in places with greatest need. In contrast, OZs provide the biggest benefits to projects with the highest returns, which are rarely aligned with equitable development” (Theodos et al., 2020). Pew corroborates this report and says that the majority of OZ investment has been in real estate, not the small businesses and community projects the policy was designed to fund (Quinton, 2020). Other organizations like Brookings and AEI criticize the program due to its qualification loopholes. A Brookings article points out that many college towns qualify for OZ status because college students generally fall below the poverty line in income, but they aren’t usually economically disadvantaged (Gelfond & Looney, 2018). An AEI article argues that “because of these eligibility criteria, high-income neighborhoods and rapidly gentrifying areas can be designated opportunity zones” (Veuger, 2020, para. 11).

What is the Investment Doing? The conflicting data on where the money is going carries over into the data about job and wealth creation. Where the White House claims that nearly $11 billion in new wealth has been generated for OZ residents who own their homes, a study from NYU found that OZs have had a very limited effect on employment outcomes (Atkins et al., 2020). Other studies point out that the increasing value of property in these areas has driven up property taxes, forcing many locals to move out (Eastman & Kaeding, 2020). Ultimately, the Tax Foundation points out that it is impossible to fully quantify and assess the impact of the policy because “the Department of the Treasury currently cannot connect opportunity zone data—such as the number of Q.O.F.s and amounts invested by Q.O.F.s and qualifying opportunity zone businesses—to specific census tracts” (Eastman, 2020).1 Pew Research emphasized this when they said, “The federal _______________ 1 A Qualified Opportunity Fund (QOF) is a partnership formed to invest in OZs. Fall 2021 • 11


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government doesn’t collect information on projects attracting investments in the more than 8,700 zones, leaving policymakers and advocacy groups to rely on anecdotes and self-reporting” (Quinton, 2020). Since enforcement and reporting standards were kept out of the final bill due to Congressional parliamentary procedure, it is challenging to identify the actual impact of these policies.

Critiques of Opportunity Zones There are several critiques of Opportunity Zones. Many of the objections were briefly mentioned in the introduction, but they will be more carefully considered, given the data examined in the previous section. The first is more fundamental than the minutiae of policy. It is the idea that this policy fundamentally redirects money away from its most efficient uses (Veuger, 2020). This view is compelling because, even though individuals may make irrational decisions, people generally make the best financial decision and the market tends toward maximal efficiency. By altering the shape of the marketplace, the OZ policy fundamentally reshapes efficiency considerations. This means that the government artificially skews the efficiency of the market which might lead to negative unintended consequences. Another basic critique of the policy is that it is not fulfilling its mission. As discussed in the previous section, billions of dollars are pouring into the designated communities, but most of the money is going to large real estate ventures, not community projects and small businesses (Drucker & Lipton, 2019; Theodos et al., 2020). Some of this phenomenon can be attributed to the fact that it is still a young program and many of the bugs are still being worked out, both in the government and in the private sector. Ultimately, Opportunity Zones do not appear to be having the impact they were designed to create. There are more granular critiques of OZs as well. The two most prominent are the need for more stringent requirements defining what qualifies as an OZ, and to have reporting mechanisms in place. Many of the most substantive critiques of the policy begin with scholars describing a generally well-off area being designated as an OZ because of its technical makeup. As has been mentioned multiple times, college towns are a prime example. If the definitions of an OZ were narrowed, the policy might accomplish its goal of empowering impoverished communities more fully. At a minimum, investors and politicians on both sides of the aisle want to add reporting requirements to the policy. Even Senator Scott said that the reason they do not exist currently is because of congressional rules that prohibited their addition to the bill when it was passed. The argument is that this will help with transparency, clarity, and measuring the impact of the investments. Senator Booker summarized this well when he said: Additionally, there needs to be transaction-level reporting so that we can 12 • Fall 2021


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properly evaluate the impact of the program and ensure that investments are being effectively allocated to low-income communities. The Opportunity Zone incentive has the potential to unleash much-needed economic boosts to distressed communities across the country – communities that are too often overlooked by investors – but without robust guardrails in place, it has the potential to be undermined or abused by unscrupulous actors who aren’t committed to the intent of the legislation to help rural and urban communities across the country. (Booker, 2019) As with any new policy, many things cannot be foreseen. Unintended consequences, or exaggerated versions of anticipated consequences, should force lawmakers on both sides of the aisle to seriously consider how to reform a policy. Opportunity Zones have immense potential as a way for the private sector to be actively involved in targeting poverty, but the flaws and critiques that have been discussed must be addressed if the policy is to be a genuine success.

Conclusion Like all policies, Opportunity Zones are not perfect. They are, however, a valiant attempt at balancing free-market principles with common-good values to create effective policy. Conservatives can support the policy because it is a tax cut that requires no government spending. And liberals can support it because it helps target poverty and infuse cash into disadvantaged communities. With no reporting, it is impossible to ascertain whether the policy is actually fulfilling its stated purposes, but it is fair to conclude that it is not. Regardless of the opportunities that tax incentives create in economically distressed areas, there can be a general economic benefit to incentivising the wealthy to invest long-term in these OZs. Cutting taxes for the wealthy is not necessarily bad, particularly since these cuts generally lead to more economic productivity. There is not much disagreement on that point, as nearly all the studies about OZs acknowledge that the policy generated, at least marginally, more economic productivity in the designated tracts. Disagreement arises when people try to determine who is benefiting and if that is a good thing. Opportunity Zones are one of the most exciting pieces of policy that Republicans have championed in the last decade. This capital gains tax incentive is exciting because of the innovation it displays, the bipartisan support it enjoys, and the freemarket principles it embodies. All are indicative of good policy making. Nothing of this nature has ever been attempted, which is why OZs have never quite lived up to their billing as the silver bullet to end poverty in America. While the idea of OZs as a panacea may be hyperbolic, rejecting them as placebos is equally detrimental. Although OZs have likely not accomplished their goal of helping large numbers of community programs and small businesses to acquire Fall 2021 • 13


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capital, they have opened inroads for investors in these communities. With some reforms—such as the addition of reporting mechanisms and stricter qualification criteria—Opportunity Zones can more successfully incentivize investment in the economically distressed areas and fulfill the purpose for which it was enacted: the alleviation of poverty.

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Reference List Atkins, R. M. B., Hernandez-Lagos, P., Jara-Figueroa, C., & Seamans, R. (2000). What is the impact of opportunity zones on employment outcomes? SSRN. New York University. https://papers.ssrn.com/sol3/papers.cfm?abstract_ id=3673986 Booker, C. (2019). Booker statement on Treasury Department opportunity zone guidelines. https://www.booker.senate.gov/news/press/booker-statement-on-treasurydepartment-opportunity-zone-guidelines Drucker, J., & Lipton, E. (2019). How a Trump tax break to help poor communities became a windfall for the rich. The New York Times. https://www. nytimes.com/2019/08/31/business/tax-opportunity-zones.html Dumain, E. (2019). Republicans losing key democratic defenders of bipartisan ‘opportunity zones’. McClatchy Washington Bureau. https://www.mcclatchydc.com/news/politicsgovernment/congress/article237472594.html Eastman, S. (2020). Measuring opportunity zone success. Tax Foundation. https:// taxfoundation.org/measuring-opportunity-zone-success/ Eastman, S., & Kaeding, N. (2020). Opportunity zones: What we know and what we don’t. Tax Foundation. https://taxfoundation.org/opportunity-zones-what-weknow-and-what-we-dont/ The Federal Reserve. (2020). Federal fair lending regulations and statutes compliance handbook. https://www.federalreserve.gov/boarddocs/supmanual/cch/fair_lend_fhact. pdf Gelfond, H., & Looney, A. (2018). Learning from opportunity zones: How to improve place-based policies. Brookings Institute. https://www.brookings.edu/research/ learning-from-opportunity-zones-how-to-improve-place-based-policies/ Homan, J. (2020). Bipartisan success of opportunity zones gives Trump an edge. Washington Examiner. https://www.washingtonexaminer.com/opinion/op-eds/ bipartisan-success-of-opportunity-zones-gives-trump-an-edge Internal Revenue Service. (2020). Opportunity zones frequently asked questions. https:// www.irs.gov/credits-deductions/opportunity-zones-frequently-askedquestions Fall 2021 • 15


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Jagoda, N. (2020). Ocasio-Cortez, Tlaib propose amendment to defund administration of ‘opportunity zone’ program. The Hill. https://thehill.com/policy/finance/508938ocasio-cortez-tlaib-propose-amendment-to-defund-administration-ofopportunity New Markets Tax Credit, U.S.C. 26, Sect. 45D(e)(1). (2020). https://www.law. cornell.edu/uscode/text/26/45D Novogradac, M. (2020). “Opportunity zones incentive sees early success, investment accelerating.” Novogradac Journal of Tax Credits Volume 11 Issue 4. https:// www.novoco.com/periodicals/articles/opportunity-zones-incentive-seesearly-success-investment-accelerating Quinton, S. (2020). Black businesses largely miss out on opportunity zone money. The Pew Charitable Trusts. https://www.pewtrusts.org/en/research-and-analysis/ blogs/stateline/2020/06/24/black-businesses-largely-miss-out-onopportunity-zone-money Scott, T. (2017). Scott on final passage of tax reform: ‘Big win for middle class families, U.S. economy.’ U.S. Senator Tim Scott of South Carolina. https://www.scott.senate. gov/media-center/press-releases/-scott-on-final-passage-of-tax-reform-bigwin-for-middle-class-families-us-economy Scott, T. (2020a). New report: $75 billion committed to opportunity zones. U.S. Senator Tim Scott of South Carolina. https://www.scott.senate.gov/media-center/pressreleases/new-report-75-billion-committed-to-opportunity-zones Scott, T. (2020b). Sen. Tim Scott: Opportunity zones are really working. Washington Examiner. https://www.washingtonexaminer.com/opinion/op-eds/sen-timscott-opportunity-zones-are-really-working Theodos, B., González, G. & Meixell, B. (2020). The opportunity zone incentive isn’t living up to its equitable development goals. Here are four ways to improve It. Urban Institute. https://www.urban.org/urban-wire/opportunity-zone-incentive-isnt-livingits-equitable-development-goals-here-are-four-ways-improve-it To provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for fiscal year 2018. H.R. 1, (2017). https://www.congress.gov/115/bills/hr1/BILLS115hr1enr.pdf

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Veuger, S. (2020). ‘Opportunity zones’ don’t actually work. The American Enterprise Institute. https://www.aei.org/articles/opportunity-zones-dont-actuallywork/ The White House Council of Economic Advisors (2020). The impact of opportunity zones: An initial assessment. The White House. https://www.nahma.org/wpcontent/uploads/2020/10/NAHMAnalysis-The-Impact-of-OpportunityZones_An-Initial-Assessment-FINAL.pdf Wittenberg, A. (2020). The biggest problem with opportunity zones. Bloomberg. https:// www.bloomberg.com/news/articles/2020-06-25/opportunity-zones-don-twork-can-they-be-fixed

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BRINGING THE SCHOOLHOUSE TO THE JAILHOUSE: EVALUATING THE RELATIONSHIP BETWEEN PRISON EDUCATION AND RECIDIVISM Isaac Z. Bock Abstract After decades of “tough on crime” criminal justice policies, the United States has the largest prison population in the world. As the American jailhouse continues to grow, however, it is also becoming increasingly undereducated. For the 1.4 million people currently in prison who will one day be released, a lack of education will make gainful employment and the path away from future criminal activity difficult. To address these difficulties, a growing number of researchers have advocated for increasing educational opportunities in prison, contending that further education may correlate with reduced rates of recidivism. This study explores whether prisoner participation in correctional education programs results in reduced rates of recidivism compared to nonparticipants. To do this, the study first briefly reviews the history of prison education policy in the United States. Second, this study considers the current education, employment, and correctional climate for former prisoners. Finally, this study performs secondary quantitative analysis of educational programs, post-release employment rates, and recidivism rates in literature from the last 3 decades. Ultimately, this study finds that prisoners who enroll in educational programs while in prison are more likely to become employed and less likely to reoffend. ___________________________________

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Introduction Jason Bell is a former inmate in the California State Prison System. In high school, Bell struggled to keep up with his peers. Upon graduation, Bell had no idea what the future held for him. None of his friends or family had ever gone to college, and he certainly did not view himself as “college material” (Deruy, 2016). Before long, Bell fell into the wrong crowd. One day, a fight at a party ended poorly. He was arrested, sent to jail, and convicted for attempted murder. For the next 10 years, Bell lived behind bars. His future, which was so uncertain months before, seemed to fade away entirely. Unfortunately, Jason Bell’s story is not unique. While the United States makes up only 5% of the world’s population, it currently holds 20% of the world’s prison population (Yoon, 2019). Every day, offenders like Bell enter the criminal justice system with little education and no clear future. While in prison, few inmates can pursue an education, vocational training, or employment. Upon release, with few employment options and limited support structures, nearly half of former prisoners in the United States find themselves back in prison within 4 years (Duwe, 2018). As this vicious cycle continues, offenders lose hope and the opportunity to serve their community through gainful employment, prison populations grow, and communities are victimized. Facing this discouraging fate, Jason Bell began to question others about continuing his education. Eventually, he discovered an initiative run by San Francisco State University called Project Rebound. Started in 1967, the purpose of Project Rebound was to give incarcerated persons a college degree with the hope that education will decrease their chances of reoffending and reentering prison (Deruy, 2016). In Jason Bell’s experience, it worked. Over the last few years of his sentence, Bell earned his college degree and found a job. In 2005, he returned to prison. This time not as an inmate, but as the new director of Project Rebound. Over the last 50 years, Project Rebound has educated prisoners under the belief that it will reduce rates of recidivism. When prisoners are offered a chance at a high school or college degree, Bell explains, “people [line] up around the yard” (Deruy, 2016, para. 15). The numbers seem to back this up. In 2010, 90% of those who entered Project Rebound graduated, and only 3% of those students who left prison ever returned (Deruy, 2016). That same year, San Francisco State University’s overall graduation rate was closer to 50% (Deruy, 2016). From personal experience and the stories of other men, Bell believes prison education can give inmates hope and bring certainty to their future. “They thought something was wrong with them,” Bell states. “It’s like a new beginning” (Deruy, 2016, para. 7). This study seeks to quantitatively evaluate the effect of such prison correctional education programs on recidivism rates across the United States. In doing so, it will answer the following research question: Does prisoner participation in Fall 2021 • 19


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correctional education programs result in reduced rates of recidivism compared to non-participants? This study contends that, by increasing the likelihood of future employment, prison education increases the probability that former prisoners will reenter society and become productive, employed citizens and will therefore be less likely to return to a life of crime. Thus, this study hypothesizes that participation in correctional education programs does, in fact, correlate with reduced rates of recidivism.

Literature Review In general, the debate regarding the benefit of correctional education programs can be divided into three categories. The first view, supported by Duwe (2018) and Moretti (2005), maintains that correctional education leads to statistically significant reductions in recidivism. Proponents of this view contend that education increases not only the rates but also the quality of employment for former prisoners reentering society. As a critical prerequisite to gainful employment, educational attainment helps former prisoners stay on the straight and narrow and avoid falling back into a life of crime. In 2013, the RAND Corporation published the seminal statistical analysis of correctional education and recidivism, finding a strong correlation between educational attainment and low reoffending rates (Davis et al., 2013). Their analysis joined a growing body of research on both state and federal levels that attempts to establish a causal link between educational programs and decreased recidivism. In addition, Couloute (2018) found that a lack of education is correlated with high rates of unemployment and recidivism among former inmates. In sum, these scholars argue that providing educational opportunities to inmates in prison will likely reduce their chances of returning to prison. While in agreement that prison education may result in some personal benefits to inmates, a second group of observers is unconvinced that education directly influences rates of recidivism. Instead, they argue that other factors such as age, category of offense, and family support structure more heavily influence recidivism rates. Pittaro (2015) suggests that many intervening variables affect whether former prisoners choose to reoffend in the United States. It is difficult, therefore, to determine whether obtaining a college degree alone reduces recidivism. In the same vein, NBC News (2008) argues that investing taxpayer dollars into correctional education programs is unwise given the lack of evidence demonstrating a link to recidivism reductions. Finally, the third category consists of the ongoing political debate regarding the wisdom of governmental funding for correctional education. Since the 1990s, a strong contingent of policymakers has opposed all federal funding for correctional education in the interest of being “tough on crime.” In 1994, the federal government banned Pell Grants, its primary form of need-based postsecondary financial aid, for 20 • Fall 2021


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all prisoners in state or federal prisons (SpearIt, 2016). Recently, Rep. Chris Collins (R-N.Y.) introduced the Kids Before Cons Act, which would prohibit the federal government from funding college-level courses for prisoners in any way (Kasperowicz, 2014). On the other side of the issue, organizations like the National Association for the Advancement of Colored People (NAACP), the American Federation of Teachers, and the Students for Sensible Drug Policy have publicly urged Congress to reinstate Pell Grants for incarcerated students (SpearIt, 2016). At the heart of this debate is the question of whether correctional education leads to a positive return on investment. Are such programs merely a drain on scarce governmental resources? Does education actually correspond with lower rates of recidivism?

Data and Methods This study addresses these questions by examining the available quantitative evidence on the impact of correctional education (independent variable) and rates of recidivism (dependent variable). To begin this meta-analysis, this study conducted a literature search of studies between 1990 and 2020 that purported to measure the effect of correctional education on future employment and recidivism for prisoners in the United States. This study first considers secondary data on education, employment, and recidivism rates for former prisoners. Second, this study reviews the current body of research on correctional education at state and national levels. When determining whether to reject or fail to reject its hypothesis, this study uses a 5% reduction in recidivism as its standard for statistical significance. This study uses recidivism as a benchmark to measure the effectiveness of correctional education programs for several reasons. First, recidivism is the outcome most commonly used in other research to determine educational program effectiveness. Second, recidivism acts as a good measure of return on investment for policymakers. Correctional education programs that lower recidivism result in a positive return on investment if they do not exceed the cost expended to operate. Reducing costs to prison systems and increasing income taxes through future employment are examples of how education programs that lower rates of recidivism could produce a positive return on investment (Duwe, 2018). Furthermore, this study examines post-release employment as an intermediate variable between correctional education and recidivism. Ultimately, this study seeks to determine whether a close relationship exists between education and recidivism. When examining how correctional education programs influence rates of recidivism, it is necessary to define and conceptualize several key terms. First, this study defines “correctional education” as prison-based programs that allow inmates to earn secondary degrees, including General Education Development (GED), or postsecondary degrees, such as vocational certificates, associate’s, and bachelor’s degrees. The concept of recidivism, however, is more difficult to define. For example, Fall 2021 • 21


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some research only includes new convictions in recidivism statistics, while others consider parole violations within the scope of the term (State of New York Department of Corrections, 2006, p. 1). Unless otherwise indicated, this study defines recidivism as “rearrest, reconviction, resentence to prison, and return to prison with or without a new sentence” (State of New York Department of Corrections, 2006, p. 1). All recidivism statistics referenced in this study exceed, at minimum, 3 years between the first release and second offense. Finally, the terms inmate, prisoner, or offender all refer to a person who served or is currently serving a criminal sentence in state or federal prison.

Research and Analysis Brief History of Correctional Education Policy For the last few decades in the United States, slogans such as “zero tolerance” and “tough on crime” have galvanized criminal justice policy (SpearIt, 2016). Retribution rather than rehabilitation became the driving principle behind state and federal governmental action. In 1994, Congress passed the Violent Crime Control and Law Enforcement Act, a piece of omnibus legislation that codified new crimes, heightened mandatory minimum sentences, and strengthened policing efforts across America (Congressional Research Service, 1994). Correctional education programs were not immune from the bill’s far reach. Deep within the bill’s text, an amendment to the Higher Education Act of 1965 declared, “No basic grant shall be awarded . . . to any individual who is incarcerated in any Federal or State Penal institution” (CRS, 1994, p. 247). Over time, Congress also banned state and federal prisoners from receiving federal student loans while in prison (Couloute, 2018). To policymakers, being tough on crime meant being tough on criminals. They, therefore, viewed funding inmate education as counterproductive. The retraction of federal education funding greatly impacted correctional education options for prisoners. While federal support for inmates was just a mere 0.001% of the total general Pell Grant budget, it supported a litany of postsecondary educational programs in prison (Karpowitz & Kenner, 2003). In 1994, without federal funds, the programs vanished overnight. In the early 1990’s, about 350 inprison college programs existed. By 2005, only 12 remained (Couloute, 2018). Today, many prisoners who seek to continue their education simply have nowhere to go. Because over 95% of the 1.5 million people in U.S. prisons will one day be released, a lack of educational opportunities in prison influences their future outside of prison (Yoon, 2019). Once released into society, former prisoners still face many barriers to pursuing education. The stigma associated with a criminal record is often enough to cause colleges and universities to turn former inmates away. In fact, many postsecondary 22 • Fall 2021


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institutions require applicants to fill out questions about their criminal history (Couloute, 2018). While colleges and universities have good reasons for including such questions in their applications, research shows that they often both deter former prisoners from completing the application process and significantly reduce the likelihood of a former prisoner’s acceptance (Couloute, 2018). The lack of federal support in prison and the barriers that exist outside of prison, combined, create a daunting task for former inmates wishing to pursue an education.

Current Issues Facing Former Prisoners Education. More than any other point in history, education is necessary for a stable future. Without a degree, individuals will likely find it difficult to get a job. Without a job, former prisoners will likely find it difficult to integrate back into society. A projection by Carnevale, Smith, and Strohl (2013) found that by 2020, 65% of all jobs will require a college degree or vocational training beyond high school, 35% of jobs will require a bachelor’s degree, and 30% will require an associate’s degree. A 2009 report from the Correctional Association of New York found that a bachelor’s degree is worth more than $1 million in lifetime earnings for former inmates. However, while education has never been more important, few groups in America have ever been as uneducated as former prisoners. Frequently, the educational attainment of former prisoners is stunted both before and after they enter prison. Relying on data from the National Former Prisoner Survey in 2008, Couloute (2018) conducted a statistical analysis of current educational attainment for former prisoners compared to the public as illustrated in Figure 1. Perhaps unsurprisingly, he found that the educational disparities between former prisoners and the public are most pronounced in college. Former prisoners are eight times less likely to go to college than non-prisoners. Over half of former prisoners only have a high school diploma or a GED, even though those credentials are increasingly losing their value in today’s job market. Finally, the formerly incarcerated are almost two times more likely than the public to have no high school diploma at all. This lack of education among former prisoners makes competition in today’s highly skilled economy next to impossible. Educational attainment has serious implications for an inmate after they are released from prison. While on parole, many former prisoners are required to find a job and complete other requirements indicative of a strong post-release support structure (Correctional Association of New York, 2009). However, a lack of education makes fulfilling such requirements and assimilating back into society difficult. In their 2013 study of correctional education programs, the RAND Corporation explained: It is challenging to prepare offenders with the needed vocational skills and education to be successful in reintegrating back into society. Offenders, Fall 2021 • 23


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on average, are less educated than the general population. In addition to having lower levels of educational attainment, offenders often lack vocational skills and a steady history of employment, which is a significant challenge for individuals returning from prison to local communities. And the dynamics of prison entry and reentry make it hard for this population to accumulate meaningful, sustained employment experience. Finally, the stigma of having a felony conviction on one’s record is a key barrier to post release employment. (Davis et al., 2013, p. xv) Thus, the future of a former prisoner post-release is significantly influenced by the education they have attained. Figure 1

Note. This graph compares educational attainment for formerly incarcerated people to that of the public. (Adapted from Couloute, 2018). Employment. For former inmates, the principal reason education is important is because it leads to employment. Gainful employment is one of the defining characteristics of an inmate’s successful reentry into society (Prison Studies Project, 2018). With increased wages, former prisoners have an easier time re-integrating into society and are disincentivized from returning to a life of crime. However, regardless of the convict’s educational history, Bernstein & Houston (2000) found that a former prisoner’s chance of finding employment is automatically lowered due to the stigma of a felony record. A 2012 Equal Employment Opportunity Commission 24 • Fall 2021


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survey found that 92% of responding employers require their employees to undergo criminal background checks. Respondents to the survey said that they used the background checks to combat theft, reduce workplace violence, and limit the potential for negligent hiring liability. Respondents also pointed to federal, state, and local laws as the basis for their criminal background checks (Equal Employment Opportunity Commission, 2012). Thus, because of both poor educational attainment and the institutionalized stigma of being a criminal, former prisoners face an uphill battle to find the employment necessary for successful reentry. Utilizing nationally representative data from 2008, the most recent year for which data are available, Couloute and Kopf (2018) conducted the first estimate of employment among the roughly five million former prisoners in the United States. Their analysis concluded that over 27.3% of former prisoners are unemployed compared to 5.8% in society at large. This means that former prisoners as a group have a higher rate of unemployment than the general American public at any point in history, including the Great Depression as seen in Figure 2. Additionally, Duwe & Clark (2017) found that even among those who found employment post release, less than half found a consistent full-time job. The evidence, therefore, indicates that the job market for former prisoners is one of the worst for any group of people in America. While employment is so essential for assimilation into society after a prisoner leaves his cell, finding it is a daunting task. Figure 2

Note. Former Prisoner’s unemployment rate in 2008 (27.3%) surpassed the rate during the Great Depresion (24.9%) (Adapted from Kopf & Couloute, 2018). Fall 2021 • 25


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Recidivism. In large part due to the criminal justice policies of the 1990s, America puts more people behind bars than any other country in the world. Every year, however, the United States releases over 600,000 former prisoners onto its streets, according to the Office of the Assistant Secretary for Planning and Evaluation (n.d.). Traditionally, the primary metric for criminal justice system success is recidivism, the number of former inmates who return to prison. Not only do policymakers seek to punish wrongdoers, but also curb future wrongdoing. However, based on the available statistical data, America’s criminal justice system is failing to reduce recidivism. According to the Pew Center on the States (2011), from the passage of the 1994 Crime Bill to 2007, recidivism rates remained relatively unchanged. The United States Sentencing Commission (USSC), an independent agency within the judiciary responsible for writing federal sentencing guidelines and compiling reports on federal crime and sentencing policies, created a comprehensive overview of recidivism in 2016. Based on data from 24,400 former inmates released or placed on probation from federal prison in 2005, the report, illustrated in Figure 3, found that nearly half had been rearrested and almost a third had been reconvicted during the 8 year follow-up period (Hunt & Dumville, 2016). This data suggests that significant levels of new offenses occur despite the current criminal justice policy. While being “tough on crime” sounds principled, its accompanying policies have only resulted in an increased prison population, not a decrease in repeat offenders. Figure 3

Note. Nearly half of all prisoners who leave prison will reoffend within 3 years (Adapted from Hunt & Dumville, 2016). 26 • Fall 2021


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Correctional Costs. As more prisoners are added to America’s prisons, the cost of keeping them confined continues to rise. The more criminals who reoffend the more correctional funding is needed. Thus, policymakers not only have a social but also a clear practical interest in reducing the number of inmates behind bars. Gorgol and Sponsler (2011) found that states spend over $52,000,000,000 every year on prisons and prison-related activities. According to the Bureau of Justice Statistics, the average annual operating cost per inmate in 2001 was $22,650 (Stephen, 2004). On the other hand, in 2009, it cost less than eight thousand dollars per student to enroll at a traditional state university such as the State University of New York (SUNY) (Correctional Association of New York, 2009). The Prison Studies Project (2018) found that only 6% of correctional spending is used for prison programs, including educational programs. While correctional education poses an additional cost to prison systems, if evidence indicates that it reduces the overall cost of corrections by reducing prisoner recidivism rates, correctional education will produce a positive financial return on investment. The Institute for Higher Education Policy concluded their fifty-state report on postsecondary education by stating, “even if educational programs are expanded, their per-prisoner cost is far less than the total cost of incarceration” (Contardo & Erisman, 2005, p. 10).

Correlation Between Correctional Education Programs and Recidivism Moretti (2005) argues that there are several primary theoretical explanations for educational attainment influencing the choice to reoffend. First, when former prisoners are more educated, they usually make more money. Former prisoners are, thus, less likely to commit a crime because they have more to lose. Second, time in prison would likely be viewed as more costly to a person with higher educational attainment. Incarceration means that a former prisoner loses his position in the workforce and is re-coated with a criminal’s stigma. Third, education may decrease the risks that an individual is willing to take. Finally, education may increase respect for authority and heighten the psychological costs of criminal activity. By informing and further developing an individual’s value structure, education may act as a philosophical barrier to future criminal behavior (Moretti, 2005). Although there are many intuitive reasons to assume that education may influence recidivism rates, quantifying their relationship is not so simple. This is because many unobserved variables such as family background, peer pressure, or income level may influence a former prisoner’s decision to commit a crime in addition to their educational attainment (Pittaro, 2015). For example, a prisoner who grew up in a poor urban neighborhood may commit a crime to support his family and also not have a high school credential. In that case, the decision to commit a crime may have little to do with the lack of a diploma. Thus, a lack of education and recidivism may correlate even if one does not seem to directly cause the other. Fall 2021 • 27


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However, it could be argued that if the offender had received his high school degree, he may have obtained gainful employment and then may have chosen not to commit a crime to support his family. Isolating the relationship between education and post-release recidivism is of great concern for policymakers. If a causal link exists between education and reduced recidivism, criminal justice policies should promote education inside prisons and post-release. If, however, it is not causal and merely aligned with other factors like family background, the promotion of education may be a waste of time and resources. Instead, policymakers should focus on addressing the primary causes of recidivism rather than education. The question for lawmakers is, therefore, whether the empirical evidence supports a close relationship between education and the choice to abstain from future criminal activity. Empirical Evidence. Attempting to use correctional education to reduce recidivism is nothing new. While the number of correctional education programs has decreased since the 1990s, policymakers and rehabilitation professionals have tested such programs for decades. To evaluate the empirical relationship between correctional education and recidivism, this study first compares the recidivism rates of a series of programs in eight states, California, Indiana, New York, Oklahoma, Oregon, Texas, Minnesota, and Washington to the national recidivism average of 49% as seen in Figure 4. In the eight states across America where data was available, correctional education programs were correlated with reduced recidivism at varying levels. California. The California State University system allows inmates to pursue bachelor’s and graduate degrees while in prison. As of 2010, only 3% of former inmates in Project Rebound’s program returned to prison (Deruy, 2016). Indiana. According to data compiled by the Prison Studies Project (2018) in Indiana, the recidivism rate for those pursuing a GED is 20% lower than the national average. The recidivism rate for those pursuing a college degree is 44% lower. Minnesota. A 2014 study on Minnesota’s correctional education programs found that former prisoners were 16% less likely to return to crime than the national average if they earned a postsecondary degree while behind bars (Duwe, 2018). New York. In New York, the Bard Prison Initiative reported a recidivism rate of 4%, 45% lower than the national average (New York State Department of Corrections and Community Supervision, 2013). Oklahoma. The Tulsa Community College graduated over 500 associate degrees to students since 2007. So far, only 25 students have returned to prison (Yoon, 2019). Oregon. In Oregon, only 6% of former prisoners who graduated from Chemeketa Community College have reoffended (Chemeketa Community College, 2018). Texas. Karpowitz and Kenner (2003) review a 2000 Texas Department of 28 • Fall 2021


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Criminal Justice study that followed 883 prisoners who earned college degrees while behind bars (p. 5). In the eight years after their release in 1992, just 27.2% who earned associate’s degrees and 7.8% of those who earned bachelor’s degrees recidivated. This compared to a system-wide average of 43% at the time. Washington. A study from the Washington State Institute for Public Policy showed that prison-based vocational programs correlated with a 12-point reduction in recidivism (Aos et al., 2006). Figure 4

Note. In studies of correctional education programs in eight states, former prisoners were less likely to recidivate than the national average (49.3%) (Adapted from Deruy, 2016; Prison Studies Project, 2018; Duwe, 2018; New York State Department of Corrections and Community Supervision, 2013; Yoon, 2019; Chemeketa Community College, 2018; Karpowitz and Kenner (2003); and Aos et al., 2006). It is important to note that the correctional education programs used in each state were by no means uniform. Many were instituted and run by state community colleges with different curriculums, degree requirements, and school policies. Additionally, the levels of educational attainment, whether vocational training, GED, associate degree, or bachelor’s degree, varied among the inmates in each state. As indicated above, some states included all forms of education in their analysis, while others, for example, narrowed their data to postsecondary education. Thus, the data gathered from these eight states should be viewed only as representative for correctional education in the general sense. Nevertheless, in every state with available data, correctional education correlated with a statistically significant reduction in recidivism. In California, it was associated with almost a complete elimination of repeat offenses, reducing the number to 3%. In addition to these correctional education data, several studies have reviewed former prisoner educational outcomes across state lines and on the national level. Fall 2021 • 29


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Steurer & Smith (2001) studied 3,170 prisoners in three states. They found that attending school behind bars correlated with a 10% reduction in reincarceration. In 2000, a meta-analysis of 33 correctional education program evaluations reported consistent reductions in recidivism rates (Wilson et al.). A 2005 report from the Institute for Higher Education Policy, which reviewed 15 different studies conducted between 1990 and 2005, reported higher numbers. They found a 46% reduction in recidivism correlated with correctional education (Contardo & Erisman, 2005). Finally and most recently, a meta-analysis by the RAND Corporation reviewed published and unpublished studies released between 1980 and 2011 that evaluated the effect of correctional education on recidivism. They found that former prisoners who completed correctional education had 43% lower odds of recidivating than non-participants. When narrowed to inmates who completed high school or GED programs, the data showed that inmates were 30% less likely to recidivate (Daviset al., 2013). In sum, all the available empirical data reviewed by this study reported a statistically significant correlation between correctional education and reduced rates of recidivism.

Correlation Between Correctional Education Programs and Employment Correctional education programs also correlate with an increase in former prisoner employment post release. The research reviewed in this study suggests that a necessary link between education and reduced recidivism is gainful employment. By increasing a former prisoner’s chances of getting a job, education greatly increases the likelihood of successful reentry into society. In other words, employment acts as an intermediate variable, often linking education and reduced recidivism to each other. As SpearIt states, “perhaps the most valuable aspect of education is that it helps ex-prisoners find gainful employment after prison. As a job is the practical basis for all other requirements on the outside, including food and housing, holding a degree or certificate can be a great asset in the task of finding one” (2016, p. 12). Empirical data supports this relationship. The 2014 study of Minnesota prisoners found that completing a high school education in prison increases an inmate’s chances of finding a job by 59%. Using aggregated data from across the nation, the RAND Corporation (2013) found that correctional education correlated with a 13% increase in employment post release. Upon narrowing the data to educational programs that provided vocational training, the RAND Corporation saw the likelihood of employment rise to 28%. This indicates that educational programs benefit former inmates the most when such programs give them practical skills which transfer well into the workplace. It also supports the inference that correctional education and recidivism are linked through the achievement of gainful employment.

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Weighing the Costs of Correctional Education and the Costs of Reincarceration While correctional education is not a significant cost to prison systems, the data indicates that correctional education leads to substantial cost savings by reducing the number of reoffenders. Each inmate who enrolls in correctional education and then successfully reenters society saves taxpayers money by not returning to prison as well as paying taxes if they gain employment. The 2013 Washington study found that for every dollar spent on correctional education, the state prison system saved $19.69 because of fewer reoffenders (Duwe, 2018). Likewise, the Minnesota study found that it saved $3.69 for every dollar it sent on correctional education (Duwe, 2018). In the RAND Corporation’s (2013) meta-analysis, they calculated the “break-even point,” the reduction in recidivism necessary for correctional education to represent a positive financial return on investment. They found that prison systems would need to reduce recidivism by 1.9%-2.6% to “break even.” Thus, even the lowest reduction in recidivism reviewed by this study, the 11% reduction reported by Wilson et al. (2001), would result in a positive financial return on investment. The available data strongly suggests that correctional education not only correlates with a sharp decrease in recidivism but also significant subsequent financial savings for prison systems.

Conclusion For more than two centuries, the “great equalizer” has given countless Americans the blessing of a second chance and the promise of a brighter future. Education allows individuals from all walks of life to meet their needs, care for their families, and pursue their dreams. Jason Bell understands this better than most. As a young man, he arrived in prison hopeless and alone. Like many of the men and women currently in prisons across America, however, Bell sought to continue his education behind bars. With the odds stacked against him, he graduated college and served out the rest of his sentence. Today, Bell is still a free man (Deruy, 2016). This study sought to empirically evaluate the experiences of Jason Bell and others like him who choose to pursue education while in prison. In doing so, it considered whether prisoner participation in correctional education programs results in reduced rates of recidivism compared to non-participants. Based on the history and current structure of criminal justice policy in the United States, this study found significant structural barriers to educational attainment including decades-old bans on federal support for correctional education. As a result, former prisoners in America are significantly undereducated and underemployed. Without the knowledge, skills, or ability to find gainful employment, almost half of all prisoners will return to a life of crime and find themselves in handcuffs again one day. The financial, social, and personal cost to this cycle of crime is enormous. Accordingly, a primary concern of policymakers is identifying and supporting solutions that break this cycle of crime Fall 2021 • 31


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and reduce recidivism. This study hypothesized that correctional education programs were such a solution. By giving former prisoners the needed skills for a highly competitive job market, this study maintained that education likely leads to gainful employment and reduces rates of recidivism. The available evidence on both state and national levels supports this hypothesis. Without exception, the data reviewed by this study found a statistically significant correlation between correctional education and reductions in recidivism. Given the consistency of these findings across state lines, between different levels of educational attainment, and through three decades of research, this study concludes that the influence of education on recidivism cannot be explained away by unobserved intervening variables. Instead, correctional education represents a cost-effective way to send a former prisoner down the path toward successful reentry into society. After three decades of retribution-centric criminal justice policy, the evidence considered in this study suggests that changes in favor of rehabilitation and geared toward reentry are in order. By investing in the education of prisoners while behind bars, policymakers will greatly increase the odds that formerly incarcerated individuals will never return.

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Reference List Aos, S., Miller, M., & Drake, E. (2006). Evidence-based adult corrections programs: What works and what does not. Washington State Institute for Public Policy. http://www. wsipp.wa.gov/ReportFile/924/Wsipp_Evidence-Based-Adult-CorrectionsPrograms-What-Works-and-What-Does-Not_Preliminary-Report.pdf ASPE (Office of the Assistant Secretary for Planning and Evaluation). Incarceration & reentry. https://aspe.hhs.gov/topics/human-services/incarceration-reentry-0 Bernstein J. & Houston E. (2000). Crime and work: What we can learn from the low-wage labor market. Economic Policy Institute. Carnevale, A. P., Smith, N., & Strohl, J. (2013). Recovery: Job growth and education requirements through 2020. Georgetown Public Policy Center. https://1gyhoq479ufd3yna29x7ubjn-wpengine.netdna-ssl.com/wp-content/ uploads/2014/11/Recovery2020.FR_.Web_.pdf Chemeketa Community College. (2018). Corrections education at Chemeketa. https:// perma.cc/4RTH-MM3G Congressional Research Service. (1994). Violent Crime Control and Law Enforcement Act of 1994: S. 11, 103rd Cong. Proquest Congressional. Contardo, J. & Erisman, W. (2005). Learning to reduce recidivism: A 50-state analysis of postsecondary correctional education policy. Institute for Higher Education Policy. https://www.ihep.org/wp-content/uploads/2017/08/uploads_docs_pubs_ learningreducerecidivism.pdf Correctional Association of New York. (2009). Education from the inside out: The multiple benefits of college programs in prison. https://www.prisonlegalnews.org/news/ publications/education-from-the-inside-out-the-multiple-benefits-ofcollege-programs-in-prison-corr-assoc-of-ny-2009/ Couloute, L. (2018). Getting back on course: Educational exclusion and attainment among formerly incarcerated people. Prison Policy Initiative. https://www.prisonpolicy.org/ reports/education.html Couloute, L. & Kopf, D. (2018). Out of prison & out of work: Unemployment among formerly incarcerated people. Prison Policy Initiative. https://www.prisonpolicy.org/ reports/outofwork.html Fall 2021 • 33


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Davis, L. M., Bozick, R., Steele, J. L., Saunders, J., & Miles, J. N. V. (2013). Evaluating the effectiveness of correctional education: A meta-analysis of programs that provide education to incarcerated adults. RAND Corporation.https://www.rand.org/content/ dam/rand/pubs/research_reports/RR200/RR266/RAND_RR266.sum.pdf Deruy, E. (2016, August 26). From Convict to College Student. The Atlantic. https://perma.cc/XWX7-FSSC Duwe, G. (2018). The effectiveness of education and employment programming for prisoners. American Enterprise Institute. https://files.eric.ed.gov/fulltext/ ED585975.pdf Duwe, G. & Clark V. (2017). Nothing will work unless you did: The predictors of post prison employment. Criminal Justice and Behavior 44(5), 657–77. https://doi. org/10.1177/0093854816689104 Equal Employment Opportunity Commission. (2012). Enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act. https://www.eeoc.gov/laws/guidance/enforcement-guidanceconsideration-arrest-and-conviction-records-employment-decisions Gorgol, L. & Sponsler, B. (2011). Unlocking potential: Results of a national survey of postsecondary education in state prisons. Institute for Higher Education Policy. https://www.ihep.org/publication/unlocking-potential-results-of-anational-survey-of-postsecondary-education-in-state-prisons/ Hunt, K. S. & Dumville, R. (2016). Recidivism among federal offenders: A comprehensive overview. United States Sentencing Commission. https://www. ussc.gov/research/research-reports/recidivism-among-federal-offenderscomprehensive-overview Karpowitz, D. & Kenner, M. (2003). Education as crime prevention: The case for reinstating Pell Grant eligibility for the incarcerated. https://www. prisonpolicy.org/scans/crime_report.pdf Kasperowicz, P. (2014, February 26). Should taxpayers fund college courses for prison inmates? The Hill. https://thehill.com/blogs/floor-action/governmentoversight/199287-should-taxpayers-fund-college-courses-for-inmates

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Moretti, E. (2005). Does education reduce participation in criminal activities? Equity Campaign. http://www.equitycampaign.org/events-page/equitysymposia/2005-the-social-costs-of-inadequate-education/papers/74_ Moretti_Symp.pdf National Institute for Justice. (2020). Recidivism. https://nij.ojp.gov/topics/ corrections/recidivism NBC News. (2008, March 17). College financial aid for predators riles some. https://www. nbcnews.com/id/wbna23677666#.WwAiNNSUt New York State Department of Corrections and Community Supervision. (2013). College programs: Educating those who are incarcerated to reduce recidivism. Pew Center on the States. (2011, April). State of recidivism: The revolving door of America’s prisons. https://www.pewtrusts.org/~/media/legacy/ uploadedfiles/pcs_assets/2011/PewStateofRecidivismpdf.pdf Pittaro, M. (2015, May 27). Should prisoners be entitled to Pell Grants to help pay for college? American Military University Edge.https://amuedge.com/should-prisonersbe-entitled-to-pell-grants-to-help-pay-for-college/ Prison Policy Center. (2021). Recidivism and reentry. https://www.prisonpolicy. org/research/recidivism_and_reentry/ Prison Studies Project. (2018). Why prison education? https://prisonstudiesproject. org/why-prison-education-programs/ SpearIt. (2016). The return of Pell Grants for prisoners? Criminal Justice, 31, 10-13. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2814364 State of New York Department of Corrections and Community Services. (2006). Follow-up study of offenders who earned their high school equivalency diplomas (GEDs) while incarcerated in DOCS. https://doccs.ny.gov/ Stephen, J. (2004). State prison expenditures 2001. Bureau of Justice Statistics. https:// bjs.ojp.gov/content/pub/pdf/spe01.pdf

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Steurer, S. & Smith, L. (2003). Education reduces crime: Three-state recidivism study. Management & Training Corporation Institute. https://www.mtctrains.com/ wp-content/uploads/2017/06/Education-Reduced-Crime-Three-StateRecidivism-Study.pdf Wilson, D.B., Gallagher, C.A., and MacKenzie, D.L. (2000). A meta-analysis of corrections-based education, vocation, and work programs for adult offenders. Journal of Research on Crime and Delinquency, 37, 347-368. https://doi. org/10.1177/0022427800037004001 Yoon, H. (2019, September 19). Back to School: A Common-Sense Strategy to Lower Recidivism. Vera. https://craft2.vera.org/blog/back-to-school-a-commonsense-strategy-to-lower-recidivism

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OPERATION ENDGAME: AN ETHICAL ANALYSIS OF ICE’S IMMIGRANT DETENTION AND DEPORTATION PROCESS Cana D. Cossin Abstract The United States has approximately 200 detention facilities that house an average of 200,000 undocumented immigrants per year. As the media focuses on photos of immigrants packed behind fences, the debate regarding the ethics of detention centers becomes increasingly contentious. Those opposed to detention facilities point to the claims of detainees as evidence that the system needs to be changed. They claim that they do not receive access to basic necessities like food, clothing, or access to proper medical care as evidence that the system needs to be changed. On the other hand, proponents of detention centers argue that they are necessary to deter discrimination and promote border safety. This study seeks to answer the question whether the treatment immigrants receive in detention centers is ethical. To that end, this study performs secondary qualitative analysis on data from the United States Department of Homeland Security and Immigration and Customs Enforcement. It also performs a qualitative analysis on stories of immigrants who have come out of these detention centers. Finally, it analyzes this data in light of the utilitarian and deontological ethical models. The hypothesis of this study is that if detention centers adhered to guidelines, the way they treat immigrants would be ethical and they should remain in place. However, sometimes they do not adhere to these guidelines and end up violating ethical standards. This study found that the current detention and deportation process violates individuals’ rights under the deontological model. It also found that based on a cost-benefit and deontological analysis, another form of immigration law enforcement would be more beneficial and less invasive in obtaining the goals ICE seeks to achieve through its current immigration system. ___________________________________

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Introduction Carlos Bonita moved to America to provide a better life for his four children. In 2019 he was arrested by Immigration and Customs Enforcement (ICE) and confined at Hudson County Correctional Center. He had a bond hearing scheduled for a judge to hear his case, but, two months after his arrest, Bonita was rushed to the hospital where he died of internal bleeding. As a result, the hearing never took place. Stories like Bonita’s are fairly common among detention center detainees. Between 2004 and 2020, 214 individuals died while in detention centers across America (Nowrasteh, 2020). Doctors estimate over half of those deaths could have been prevented if the detainees were provided with proper medical care (Human Rights Watch, 2018). Those who run detention centers claim to provide high-quality medical care and to “ensure that detainees . . . reside in safe, secure and humane environments” (ICE, 2021, para. 3). However, not only are many individuals dying from problems that could have been solved with adequate medical care, but the overwhelming majority of immigrants who have come through these detention centers complain that they were treated worse than dogs and received inadequate food, care, and medical attention when they needed it (Human Rights Watch, 2018). In 2003, ICE launched “Operation Endgame” wherein they committed themselves to ending illegal immigration in the United States. As part of this plan, they claimed to be working toward both improving border security and implementing new regulations regarding the treatment of detainees in detention centers (U.S. Department of Homeland Security, 2003). As of 2021, over 17 years after the implementation of “Operation Endgame,” ICE operates eight detention centers (ICE, 2021). However, only 30% of immigrants are actually held in these centers (2021). The other 70% are held in state jails, local jails, or detention centers run by private companies that hold contracts with ICE to detain immigrants (2021). While ICE has a set of ethical standards that ensure its detainees receive humane treatment, proper access to medical care, and sufficient food in its Service Processing Centers, only 65% of ICE’s Service Processing centers are bound by these standards (2021). The privately-run companies, which detain approximately three-quarters of the immigrant detainee population, operate outside the purview of public oversight. The companies that run these detention centers often cut medical staffing and deny care to detainees as cost-saving measures (Luan, 2018). This lack of ethical standards often leads to neglect of the detainees. The majority of immigrants who are detained report that they are denied access to food, clothes, basic hygiene items, medical care, access to legal advice, and other necessities (Wilder, 2008). This study seeks to answer the question: is the treatment that immigrants receive in detention centers ethical from a utilitarian and deontological approach? The hypothesis is that if detention centers adhered to guidelines, the way they treat immigrants would be ethical and they should remain in place. However, 38 • Fall 2021


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sometimes they do not adhere to these guidelines and violate ethical standards.

Literature Review The act of detaining undocumented immigrants attempting to enter the United States dates back to the opening of Ellis Island in the 1890s. Throughout the 20th century, immigration policy expanded, and in the 1980s, during the Reagan presidency, it began to take shape into the policies in place today. Since 2003, the U.S. Immigration and Customs Enforcement, an investigative arm of the U.S. Department of Homeland Security (DHS), has overseen immigration, detention, and deportation in the United States, with the goal to “strengthen border security and prevent the illegal movement of people, goods, and funds into, within, and out of the United States” (ICE, 2021). In 2003, The DHS launched its strategic plan for 2003-2012 called “Operation Endgame,” which was designed to “promote the public safety and national security by ensuring the departure from the United States of all removable aliens through the fair and effective enforcement of the nation’s immigration laws” through five strategic initiative goals (Tangeman, 2003, p. 104). The DHS hoped that over the next decade, by increasing private contracts and utilizing new technology, the plan would lay the groundwork to develop the capacity and capability to remove all illegal aliens (DHS, 2003). Despite ICE’s Operation Endgame plan, the number of undocumented immigrants in the U.S. has grown significantly since 2003. The Department of Homeland Security’s Office of Immigration Statistics (OIS) reported an estimated 11.6 million undocumented immigrants living in the U.S. in January, 2006 (Merrell, 2007). In 2018, it was estimated that there are between 11 and 12 million undocumented immigrants living in the United States (Baker, 2018). While it is impossible to know how many immigrants cross the border each year, in 2018 approximately 400,000 individuals attempting to cross the border were stopped (Robertson, 2019). In 2019, ICE’s Enforcement and Removal Operations branch (ERO) apprehended 1,148,024 of these undocumented immigrants and placed 510,854 of them in detention centers to await a court date, deportation, or official certification as an asylum seeker allowing them to remain in the country (ERO, 2019). While some immigrants are only housed in these facilities for a few hours, some stay for months at a time; the average length of stay was 34.3 days in 2019, a decrease from 39.4 in 2018 and 43.7 in 2017 (ERO, 2019). At the end of their stay, approximately half of those detainees—226,400—were deported (ERO, 2019). Scholars argue over the ethical implications and practicality of utilizing detention systems as an increasing number of undocumented immigrants attempt to migrate to the United States. Scholars like Dow (2007), Neuman (2021), Saadi (2020), and Wilder (2008), point to the horrific stories of immigrants coming out Fall 2021 • 39


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of the detention centers in their research as evidence of potential ethical violations. The detainees claim to have lived in prison-like conditions and denied basic medical care. Neuman (2021) claims that allowing the current process to continue as more immigrants attempt to make their way into the country will lead to overcrowding and worsening conditions. Others claim that the problem lies not only in the way these immigrants are treated, but also in the fact that these immigrants do not have a legal outlet to voice their concerns or appeal their trial (Alden, 2018). Some contend that the flux in immigration simply means that the government needs to expand the contracting arena and ensure that more privately-run facilities are optimized to hold undocumented detainees. Proponents of this view, such as scholars Doty and Wheatley (2013), speak to the economic benefits of turning immigration over to the private sector. They praise the high number of jobs that originate in prison towns as a result of Operation Endgame and the rise of privately-run detention facilities. They also contend that creating more of these facilities is conducive to both border protection and the growth of the economy. Contrary to Doty and Wheatley, scholars like Neuman (2021) are wary of undocumented immigrants being housed in facilities run by private corporations, arguing that the lack of universal standards results in mistreatment.

Data and Methods This study performs secondary qualitative analysis on data collected by experts in the field of government and official government organizations like ICE and the DHS to determine whether detention centers operate ethically. Both detention centers and the deportation process have been impacted by the COVID-19 pandemic. During fiscal years 2020 and 2021, the data was disproportionate to prior trends. Therefore, this study primarily relies on data and analyses from 2019 and prior. First, it is important to define undocumented immigrants—the kind of immigrants being held in detention centers. When an individual enters the United States without taking the proper steps outlined by the law and does not possess proper documentation to prove they have a right to residency in the United States, they are labeled an undocumented immigrant. These individuals are not on work visas or other residency programs—either because they were never part of the program in the first place or because their participation in the program has expired. They often work in the United States under fake names and fake social security numbers or are paid in cash “under the table” by their employers (Campbell, 2016). Second, it is important to draw a distinction between the terms “moral” and “ethical” and then define and operationalize them for use in this study. While both are concerned with the general goodness or badness of human action, morality is concerned with evaluating acts as right or wrong in light of a generally accepted code of conduct. On the other hand, ethics takes it a step further, applying morals to 40 • Fall 2021


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analyze something in light of an elaborate code or moral principle. Since differing worldviews—and by extension differing moral codes—can allow for individuals to have various opinions on whether something is ethical or not, this paper will attempt to understand the ethicality of detention centers in light of two different ethical models: utilitarianism and deontology. Utilitarianism is defined as an approach in which the worth of any action must be determined solely by its effectiveness in maximizing positive utility or minimizing negative utility. Deontology is defined as an approach that holds that some acts are inherently right or wrong regardless of their consequences due to a higher moral code. Understanding these approaches and definitions will allow for a more comprehensive study that focuses on the facts and data necessary to perform an ethical examination of detention centers.

Research Understanding the Current System The current process for detaining individuals begins when an individual is apprehended for an immigration violation. Upon apprehension, the DHS makes an initial determination as to whether the individual can legally be detained (Marouf, 2017). If they decide that the individual can, they determine which facility to send the individual to, weighing factors such as their age, threat to society, and whether they are being detained alongside family members. Once they are sent to a particular facility, they await their trial date (Marouf, 2017). The government will typically only detain an immigrant if they pose a ‘flight risk,’ meaning they are likely to move to another state, evade their court hearing, or are deemed a public safety threat to citizens. Individuals who have committed a crime (e.g. they arrived at the border without a visa or refugee status, have missed prior immigration court dates, or have been deported before) are typically the ones placed in detention centers (ICE, 2021). When an individual is apprehended, they are detained in one of the three types of detention facilities: Contract Detention Facilities (CDFs), which are owned and operated by the private sector but hold contracts with ICE to house immigrants; Service Processing Centers (SPCs), which are owned by ICE; and centers with whom ICE has an intergovernmental agency service agreement (IGSA) such as state, local, and county jails (Doty and Wheatley, 2013). Private sector detention began in 1983 when the federal government entered into a contract with the Corrections Corporation of America, offering them funding in exchange for housing immigrants in their Houston Contract Detention Facility (Freedom for Immigrants, 2017). Over the past few decades, as the numbers of undocumented immigrants apprehended by ICE have risen, private detention has become increasingly prevalent. According to data gathered by the Sentencing Project, 81% of detained immigrants were housed in privately-run CDF facilities in 2019 (Muhitch and Ghandnoosh, 2021). Fall 2021 • 41


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ICE sets forth clear guidelines for how these contracted facilities are to operate through the 2011 Performance Based National Detention Standards (PBNDS 2011) and the 2019 National Detention Standards (NDS 2019). These standards seek to ensure that detained immigrants are being housed in an acceptable manner by detailing how state governments, local governments, and private entities are to treat the detainees they house (ICE, 2021). Although these standards require proper treatment for detainees, not all detention facilities follow these standards. In a 2020 audit, ICE found that approximately 30% of detention facilities were operating at a lower than satisfactory level (ICE, 2020).

Deficiencies of Detention Despite the U.S. Supreme Court’s ruling in Wong Wing v. United States in 1896 that “detention is not imprisonment in a legal sense,” detainees are still housed in prison and experience what many refer to as “prison-like conditions” (Dow, 2007, pg. 536). In 2008 approximately 80% of ICE beds for detainees were located in state and local jails—most owned by private companies (Wilder, 2008). In sworn affidavits obtained by the NACLA, thousands of detainees reported insufficient medical care, rampant depression, threats from guards, weight loss, malnutrition, and poor natal care (Wilder, 2008). Inspections by the Homeland Security’s Inspector General found evidence of similar conditions. A 2006 audit noted that many of the detainees were sick due to unsafe food and inadequate medical care (Department of Homeland Security, 2006). Reporters who have visited the short-term facilities consistently note that people are sleeping on thin mattresses on the floor in dirty clothes with only foil blankets keeping them warm (Neuman, 2021). They are often stuck in overcrowded rooms, just inches apart. Once they are transferred to the longer-term detention centers, the treatment does not improve much; detained individuals are housed in secure facilities, wear prison uniforms, and are subjected to strict control of their time and movements (Saadi, 2020). Since many detention centers are privately run, not every facility is the same. In some facilities, particularly ones where families and young children are housed, individuals have access to education, computers, games, and in some cases the outdoors. However, these cases are the exception and only exist in approximately 10% of detention facilities (Dow, 2007). Even in facilities that allow more freedom and accessibility, physical abuse and sexual assault are common. The government provides ways for individuals to report misconduct they experience in the detention facilities, but studies show that these reports are frequently ignored. For example, the Department of Homeland Security received 33,126 complaints of sexual and physical abuse from January 2010 to July 2016 but investigated only 570 (Saadi, 2020). Additionally, both ICE officials and those who oversee facilities are unable to adapt to the unique needs of individuals. 42 • Fall 2021


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Immigrants will be sent to different facilities regardless of where they came from or their past experiences. When solitary confinement is used as punishment or to monitor individuals who experienced victimization or mental illness, psychiatrists and doctors note that it has a detrimental impact on the physical and psychological well-being of the detainees (Saadi, 2020). Immigrants who are detained often lack the resources to obtain legal counsel or fight battles in court regarding immigration or abuse (Alden, 2018). Today, nearly 80% of all removal orders are prepared and executed without the involvement of an immigration judge. In these cases, only an asylum seeker who claims deportation will lead to torture or persecution can prevent a rapid deportation by ICE. In the vast majority of these cases, the individuals do not have access to a lawyer and are thus unable to speak to or persuade an immigration judge that a full hearing is required (Alden, 2018). Currently, detainees lack the options and resources to escape detention or fight back legally, even if such a course is offered on paper. While immigrants are typically offered some sort of bond, the bond is often useless due to their fiscal state. Since 2016, 38% of these bonds were set between 5,000 and 10,000 dollars, sums which friends and family in Mexico who are also in a poor financial state are unable to pay (ACLU, 2018). According to 2018 ACLU data, 70% of immigrants who received bonds were not able to pay it in the first five days (ACLU, 2018). These undocumented immigrants then remain in detention for days , resulting in a loss of their jobs, their houses, small businesses, or in some cases even their children (ACLU, 2018). Those with financial stability are allowed to go free while the poor remain simply because they cannot afford to pay their way out. Private sector organizations like Freedom for Immigrants often act as resources to help individuals pay bonds, but most immigrants struggle to access these resources. The language barrier and lack of understanding of the American legal system prevent them from contacting or even knowing that these resources exist. These organizations also have limited resources: They cannot pay bond for the all 50,000 undocumented immigrants that are in detention each day (ACLU, 2019). In addition to the problems individual undocumented immigrants face, there are also problems with the systemas a whole. ICE detention centers are underfunded. For fiscal year 2019, ICE only had the funds to detain 40,520 people per day (American Immigration Council, 2021). Many scholars believe that the current system’s emphasis on the private sector and for-profit prisons leads societies to see detainees as inhuman—simply a means to make money. Residents who live in the towns where these detention centers exist refer to their own cities as “prison towns” and link the facilities with the economic vitality of the city. In 2012 the mayor, town officials, and school superintendents of Florence, one of these prison towns, all voiced support for more inmate beds after a GEO group official told them the company’s proposal to build a new 1000-bed prison on the basis that doing so would create 200 Fall 2021 • 43


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construction jobs, 260 additional jobs at the prison, and a $12 billion annual payroll (Doty & Wheatley, 2013). Citizens in these “prison towns’’ see detention, and by extension the immigrants themselves, merely as a way to make money.

Alternatives to Detention Centers: Scholars and politicians propose several alternatives to ICE detention centers. The first alternative is through the official ICE-run Alternative to Detention Programs (ATD). Currently, ICE only runs one official Alternative to Detention program: The Intensive Supervision Appearance Program (ISAP III). ISAP III is operated by a for-profit firm, Behavioral Interventions, that contracts with ICE to use ankle monitoring, biometric voice recognition software, unannounced home visits, employer verification, and in-person reporting to supervise undocumented immigrants who are awaiting a hearing before a judge (Marouf, 2017). There are two versions: the “Technology-Only” version which uses electronic GPS and telephonic monitoring, and the “Full-Service” version which includes case-management services, including in-person check-ins (Marouf, 2017). A 2014 ACLU study estimated that ISAP III spends between 17 cents and $17 per person each day (ACLU, 2018). That makes the ISAP program substantially cheaper than detention facilities which cost an average of $118.14 a day according to ICE’s 2014 budget overview (DHS, 2014). Not only is ISAP III a much cheaper option, it also has high rates of court appearances. In 2017 there was a 99% appearance rate at immigration court hearings and a 91.5% appearance rate at final hearings for those enrolled in the ISAP III program (American Immigration Lawyers Association 2019). Despite these statistics, ICE relies much more on detention centers than it does on the ISAP III program. In August of 2018, 87,384 individuals were enrolled in ISAP III, approximately one-fifth of the number of the individuals detained in detention centers in 2018 (Singer, 2019). An ADP program similar to the ISAP III program was the Family Case Management Program (FCMP), in which undocumented families are released into the United States and assigned a caseworker. The caseworker provides them with legal education and resources to ensure they comply with legal requirements. The Obama administration implemented this program in 2016, but it was shut down by the Trump administration a year later in June of 2017 (La Corte, 2019). The FCMP was also very successful in ensuring immigrants showed up to their court dates. Out of the 954 enrolled participants, only 23 of them—or 2%—absconded. The program achieved a 99% compliance rate for check-ins and a 100% compliance rate for court hearings (La Corte, 2019). Finances were one of the biggest reasons the program was defunded in 2017. In 2017 ICE spokesperson Sarah Rodriguez stated, “by discontinuing FCMP, ICE will save more than $12 million a year—money which can be utilized for other 44 • Fall 2021


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programs, which more effectively allow ICE to discharge its enforcement and removal responsibilities” (Pyke, 2018, para. 6). However, like the ISAP III, the FCMP program costed substantially less than detention centers—at around $36 a day per family (La Corte, 2019). A second alternative to detention centers is through programs like President Trump’s 2019 Migrant Protection Protocols (MPP), more commonly known as the “Remain in Mexico” program. Under MPP, undocumented immigrants who are apprehended while attempting to cross the southwest border claim to be seeking asylum can be sent back into Mexico to “border towns” where they await court dates before an immigration judge (Nielson, 2019). However, the way the program is constructed makes it difficult for these immigrants to win asylum. Data suggests that only approximately 7.5% of these asylum-seekers manage to hire a lawyer (American Immigration Council, 2021). By December 2020, of the 42,012 cases that had been completed, only 638 immigrants were granted asylum. Additionally, the MPP does not apply to all immigrants apprehended at the border. Unaccompanied children, citizens of Mexico, those with physical and mental issues, are more likely than not to face persecution in border towns (American Immigration Council, 2021). While programs like the MPP may benefit the U.S. from an economic standpoint, MPP does not seem to address the ethical issues many have with detention centers. Immigrants who are part of the MPP program no longer fall under U.S. protections and laws when they are sent back to Mexico. Thus the rights and privileges that would have been afforded to them in U.S. detention camps no longer apply. Although the Mexican government has committed to working alongside the U.S. government to provide transit locations where these individuals can be housed, they do not put enough funding to shelter all the immigrants, and the U.S. government provides no financial assistance to MPP refugees (Nielson, 2019). As a result, tent camps spring up in the border cities where thousands of asylum refugees live in squalid conditions without running water or electricity. From the program’s beginning in 2019 to December 2020, there were 1,341 publicly documented cases of rape, kidnapping, and assault among this MPP population (Nielson, 2019).

A Utilitarian Cost-Benefit Analysis From a purely fiscal perspective, both ADPs and the MPP would be preferable to detention centers. ICE’s main goal for detention centers is to ensure immigrants show up to their court dates (ICE, 2021). Both ADP and MPP programs achieve this goal as shown by their near perfect court appearance and check-in statistics. Furthermore, they cost substantially less than detention programs, meaning their implementation will save the country millions each year. Implementing ADP and MPP procedures would save the government nearly 100 dollars per capita in Fall 2021 • 45


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detention each day, while not substantially impacting the court appearance rates for undocumented immigrants. In addition to the money the federal government spends on detention centers, there is also a plentitude of other costs the government incurs upon detaining individuals. When parents are detained and deported, the state takes the children and puts them in foster care. The country also loses out on the productivity of the worker while they are detained and after their deportation. Employers have to go out and hire new individuals—resulting in lost productivity in the workplace. Implementing ADP or MPP procedures would diminish these additional costs that the government incurs through the detention process. Thus, under a fiscal utilitarian analysis, the government should replace detention centers with either ADP or MPP programs.

Religious Convictions: A Deontological Analysis Since immigration deals with human beings, oftentimes individuals are reluctant to take a utilitarian, cost-benefit approach to analyzing the issue. For many, the immigration process is more of an emotional and moral question, so they analyze the argument under their own deontological approaches. According to the Pew Research Center, 70.6% of individuals in America identify as Christian, with 20.8% identifying as Catholic and 25.4% identifying as Evangelical Protestant (Pew Research Center, 2014). This study analyzes the immigration process in light deontological beliefs of both Catholics and Evangelical Protestants. In 2013 the United States Conference of Catholic Bishops (USCCB) affirmed that while a government may impose certain restrictions on unauthorized immigrants entering a country, the current system is not morally acceptable. In their official statement on immigration reform, they declared that because the vast majority of immigrants deported through the detention system end up re-entering the United States, and the fact that so many of these returning immigrants end up perishing on the journey back across the Southwest’s deserts due to heat exposure, dehydration, and drowning, the current system should be replaced (USCCB, 2013). Rather than encouraging the current system, they declare that the United States should embrace a more tolerant approach in which they increase the number of visas. Rather than deporting immigrants, the United States should implement an earned legalization program where undocumented immigrants of good behavior can apply for status as a legal immigrant (USCCB, 2013). They base these arguments on the Catholic catechism and a 2003 pastoral letter written by a number of bishops titled “Strangers No Longer: Together on the Journey of Hope.” The catechism states that the first duty of a good government is to welcome the foreigner out of charity and respect. On a similar note, the letter declares, “[w] hen persons cannot find employment in their country of origin to support themselves and their families, they have a right to find work elsewhere in order to survive…. 46 • Fall 2021


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[m]ore powerful economic nations… have a stronger obligation to accommodate migration flows” (USCCB, 2013, para. 5). Ultimately the arguments within these two documents can be traced back to Scripture. They point to passages like Jeremiah 7:5-7 where the prophet instructs individuals to, “contribute to the needs of the saints; extend hospitality to strangers” (NRSV) and Colossians 3:11 where Paul echoes the idea stating, “Let brotherly love continue. Do not neglect to show hospitality to strangers, for thereby some have entertained angels unawares. Remember those who are in prison, as though in prison with them, and those who are mistreated” (ESV). The Catholic Church acknowledges that the government has authority to enforce its borders pursuant to passages like Romans 13:1, but they contend that showing hospitality ought to trump that—that we as Americans ought to show hospitality to immigrants. Among the Protestant community, there are a variety of viewpoints when it comes to discussing the morality of immigration policies and detention centers. However, there is a general consensus that the Scriptures point to treating individuals as human, regardless of the public policy proposals they support. Given verses like Genesis 9:6 and Romans 8:29 which make clear that man is created in the image of God and ought to be treated as such, Christians must keep in mind that they are dealing with human beings who are created in the image of God. Pastor and author Daniel Darling applies these verses to the immigration debate when he states, “If we forget, obscure or deny that any particular group of people [are fully] human, we lose the ability to imagine ourselves in their circumstances and to act with compassion. We dehumanize them, but we also pave the way for actions that ultimately dehumanize us” (The Ethics and Religious Liberty Commission, 2019, para. 5). If immigration and detention policies fail to treat detainees humanly—and the studies of both personal stories and violations of ICE law have shown that they do—then the way detention centers are currently run violate Christian ethics from a deontological approach.

Conclusion The question of detention centers is a contentious one in the political arena. The studies show that even with extensive protocols in place detailing how federally owned and privately-run detention facilities are to operate, a substantial number of these facilities fail to maintain adequate standards. Even among facilities that do maintain adequate standards, the cost of running 24-hour detention centers is much more than the alternatives to detention. Since alternatives to detention centers have court appearance rates nearly identical to those of detention centers, cost substantially less, and do not force migrants to live in unsanitary conditions, they are preferable from both a utilitarian and deontological perspective. Before public policy is implemented requiring detention centers to be replaced by alternative programs, further studies ought to be done to determine the costs of Fall 2021 • 47


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transferring from one program to another and an attempt must be made to understand the impact such a transition will have on deterring undocumented immigrants from entering the country. Other countries such as Australia and New Zealand have begun to do away with detention centers and replace them with policies like ADPs and MPPs. Analyzing the impact such programs have had on those countries would be conducive to understanding and crafting alternative immigration policies in America.

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Reference List ACLU Analytics and Immigrant’s Rights Project. (2019, January). Discretionary Detention by the Numbers. American Civil Liberties Union. https://www.aclu.org/ issues/immigrants-rights/immigrants-rights-and-detention/discretionarydetention Alden, E. (2018, January). Is border enforcement effective? What we know and what it means. Journal on Migration and Human Security 5(2): 481–490. https://doi. org/10.1177/233150241700500213 American Immigration Council. (2021, January). Fact sheet: the cost of immigration enforcement and border security. https://www.americanimmigrationcouncil.org/ research/the-cost-of-immigration-enforcement-and-border-security American Immigration Council. (2021, January). Fact sheet: the migrant protection protocols. https://www.americanimmigrationcouncil.org/research/migrantprotection-protocols American Immigration Lawyers Association. (2019, June). The real alternatives to detention. American Immigration Lawyers Association. https://sgp.fas.org/crs/homesec/ R45804.pdf Baker, B. (2018). Estimates of the Illegal Alien Population Residing in the United States: January 2015. Department of Homeland Security. https://www.dhs.gov/sites/ default/files/publications/18_1214_PLCY_pops-est-report.pdf Campbell, A. (2016, September 12). The Truth About Undocumented Immigrants and Taxes. The Atlantic. https://www.theatlantic.com/business/ archive/2016/09/undocumented-immigrants-and-taxes/499604/ Department of Homeland Security. (2006). Performance and Accountability Report: Fiscal Year 2006. https://www.dhs.gov/sites/default/files/ publications/cfo_par2006_fullreport.pdf Doty, R., & Wheatley, E. (2013, December). Private Detention and the Immigration Industrial Complex. International Political Sociology, 7(4), 426-443. https://academic.oup.com/ips/article-abstract/7/4/426/1807447?redirected From=fulltext

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Dow, M. (2007). Designed to Punish: Immigrant Detention and Deportation. Social Research, 74(2) 533-546. Enforcement and Removal Operations (ERO). (2019). U.S. Immigration and Customs Enforcement Fiscal Year 2019 Enforcement and Removal Operations Report. U.S. Immigration and Customs Enforcement. https://www.ice.gov/sites/default/ files/documents/Document/2019/eroReportFY2019.pdf The Ethics and Religious Liberty Commission of the Southern Baptist Convention. (2019, September 30). Upholding the God-given dignity of every person. https://erlc.com/resource-library/articles/upholding-the-god-given-dignityof-every-person/ Freedom for Immigrants. (2017). A Short History of Immigration Detention. https://www.freedomforimmigrants.org/detention-timeline Human Rights Watch. (2018, June 2020). Code Red: The Fatal Consequences of Dangerously Substandard Medical Care in Immigration Detention. https:// www.hrw.org/report/2018/06/20/code-red/fatal-consequences-dangerouslysubstandard-medical-care-immigration# La Corte, M. (2019, April 17). Restore the Family Case Management Program for Asylum Seekers. Niskanen Center. https://www.niskanencenter.org/restore-thefamily-case-management-program-for-asylum-seekers/ Luan, L. (2018, May 2). Profiting from Enforcement: The Role of Private Prisons in U.S. Immigration Detention. Migration Policy Institute. https://www. migrationpolicy.org/article/profiting-enforcement-role-private-prisons-usimmigration-detention Marouf, F. (2017, August). Alternatives to Immigration Detention. Cardozo Law Review, 38 2141-2192. https://scholarship.law.tamu.edu/cgi/viewcontent. cgi?article=1875&context=facscholar Merrell, M. (2007, December). The Impact of Unauthorized Immigrants on the Budgets of State and Local Governments. Congressional Budget Office. https://www.cbo.gov/sites/ default/files/110th-congress-2007-2008/reports/12-6-immigration.pdf Muhitch, K., & Ghandnoosh, N. (2021, March). Private Prisons in the United States. The Sentencing Project. https://www.sentencingproject.org/publications/privateprisons-united-states/ 50 • Fall 2021


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National Immigrant Justice Center. (2019, April). A Better Way: CommunityBased Programming as an Alternative to Immigrant Incarceration April 2019. National Immigrant Justice Center. https://immigrantjustice.org/sites/default/ files/uploaded-files/no-content-type/2019-04/A-Better-Way-report_ Executive-Summary_April2019.pdf Neuman, S. (2021, March 23). CBP Defends Conditions At Border Detention Centers Amid Upsurge In Migrants. NPR. https://www.npr. org/2021/03/23/980290448/cbp-defends-conditions-at-border-detentioncenters-amid-upsurge-in-migrants Nielsen, K. (2019, January). Policy Guidance for Implementation of the Migrant Protection Protocols. Department of Homeland Security. https://www.dhs.gov/sites/ default/files/publications/19_0129_OPA_migrant-protection-protocolspolicy-guidance.pdf Nowrasteh, Alex. (2020, October 20). 21 People Died in Immigration Detention in 2020. Cato Institute. https://www.cato.org/blog/21-people-died-immigrationdetention-2020 Pew Research Center. (2014). Religious Landscape Study. Pew Research Center. https:// www.pewforum.org/religious-landscape-study/ Pyke, A. (2018, June 21). 1 year ago, Trump got rid of a wildly successful immigration program that didn’t lock people up. Think Progress. https://archive. thinkprogress.org/trump-ended-successful-migrant-monitoring-programbecause-didnt-deport-enough-bd506068c05c/ Robertson, L. (2019, June 7). Illegal Immigration Statistics. FactCheck.org https:// www.factcheck.org/2018/06/illegal-immigration-statistics/ Saadi, A., Young, M.D.T., Patler, C., Estrada, J.L., & Venters, H. (2020). Understanding US Immigration Detention: Reaffirming Rights and Addressing Social-Structural Determinants of Health. Health and Human Rights Journal, 22(1) 187-198. https://www.hhrjournal.org/2020/05/understandingus-immigration-detention-reaffirming-rights-and-addressing-socialstructural-determinants-of-health/ Fall 2021 • 51


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Singer, Audrey. (2019, July 8). Congressional Research Service. Immigration: Alternatives to Detention (ATD) Programs. https://www.everycrsreport.com/ files/20190708_R45804_a4bc52837d9b7b549de0428e186e0c2013ad6447. pdf Tangeman, T. (2003). The detention and removal program under the new Bureau of Immigration and Customs Enforcement. In Defense of the Alien, 26. 103-107. United States Conference of Catholic Bishops. (2013, August). Catholic Church’s Position on Immigration Reform. https://www.usccb.org/issues-and-action/ human-life-and-dignity/immigration/churchteachingonimmigrationreform U.S. Department of Homeland Security. (2003, June). ENDGAME: Office of Detention and Removal Strategic Plan, 2003 – 2012: Detention and Removal Strategy for a Secure Homeland. https://fas.org/irp/agency/dhs/endgame.pdf U.S. Immigration and Customs Enforcement. (2020, December 23). ICE Annual Report Fiscal Year 2020. https://www.ice.gov/doclib/news/library/reports/annualreport/iceReportFY2020.pdf U.S. Immigration and Customs Enforcement. (2021). Detention Management. https:// www.ice.gov/detain/detention-management U.S. Immigration and Customs Enforcement. (2021). https://www.ice.gov U.S. Immigration and Customs Enforcement. (2021, March). 2019 National Detention Standards for Non-Dedicated Facilities. https://www.ice.gov/detain/ detention-management/2019 U.S. Immigration and Customs Enforcement. (n.d.). ICE’s Mission. https://www. ice.gov/mission Wilder, F. (2008, April 10). Detention Archipelago: Jailing Immigrants for Profit. NACLA. https://nacla.org/node/4519/devel

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CONTRACT INCENTIVES: THE UNIQUENESS OF AND SOLUTION FOR PRIVATE PRISONS James L. Elliott Abstract This study analyzes whether changing the type of incentives within contracts between the government and private prisons could lead to reforming inmates more effectively. To that end, this study first examines the status quo of recidivism rates, rehabilitation programs, and safety measures in public and private prisons. Then this study describes the contractual status of private prisons that grants government officials a unique opportunity to incentivize change in the prison system. Finally, this study identifies different case studies from the United States and other countries that use contractual incentives other than per diem incentives and the effects of these novel prison programs. This study hypothesizes that focusing on performance and personnel incentives in contracts with private prisons is more effective in fostering safety for inmates, the eventual rehabilitation of those inmates, and decreased recidivism rates. This study closes with recommendations on improving transparency within private prisons and uniformity in the contractual process in order to discourage maladministration. ___________________________________

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Introduction Locked in his cell, 44-year-old Kelly Mallet witnessed bloodshed helplessly for 48 hours. “People were begging for their lives as they were stabbed,” Mallet remembered, “There were fires being set. Trash everywhere. Rats. Roaches. It was just total chaos” (Laughland, 2020, para. 1). Serving an 8 year sentence for a non-violent drug crime, Mallet was thankfully not one of the five human beings murdered during a 1 week period in Mississippi correctional institutions. He recalled patrol officers storming his unit to retake it from gang domination. When Mallet was released, he was escorted by armed officers to protect him from the other inmates. Composed of three state-run prisons and three private prisons, the Mississippi Department of Corrections re-opened its penal institutions shortly after the riots subsided. Even then, an anonymous inmate informed his attorney that they had to defecate into overflowing toilets, sleep on concrete floors, and be deprived of showers, running water, and food besides crusts of bread. The account of these anarchic, filthy conditions seems fit for a prison camp before the Geneva Convention, yet it took place in the United States of America in 2020. This resulted in calls for an investigation from the Department of Justice (DOJ), the violence and maladministration is hardly isolated in Mississippi. Though Kelly Mallet experienced the bloody takeover in a public institution, research has long indicated that private prisons have similar or worse conditions and recidivism rates than their public counterparts. In fact, the Office of the Inspector General of the DOJ reported the security incidents per capita were significantly worse on average at private institutions across the country than institutions in the Bureau of Prisons (BOP) (Office of the Inspector General, 2016a). Nevertheless, other research has concluded that courts rectify these issues at a rate consistent with both public and private prisons (Burkhardt & Jones, 2016). The problem of maladministration, violence, and failure to rehabilitate inmates applies to state prisons and private prisons alike. Private prisons, however, are unique in that they are formed by a company that agrees to a codified contract with the government, whether state or federal. Two companies in particular, the GEO Group and CoreCivic Inc., run the majority of private prisons, also known as contract prisons, in the United States (Duprey, 2021). To keep their contracts, they must agree to stipulations made by the government regarding accreditation and theoretically must maintain quality conditions within the prisons. Currently, however, nearly all prisons receive per diem incentives from the government, which means that the government pays the company a fixed rate per prisoner per day (Arizona Procurement Portal, 2021). Therefore, the prisons are naturally incentivized to pack more prisoners into their cells. The debate on how to reform contract prisons to promote fewer security incidents, a higher quality of living, and lower recidivism rates seems to cover two 54 • Fall 2021


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extremes, either leaving the status quo as is or doing away with private prisons altogether. Some argue that private prisons save enough money to justify their existence and provide a buffer from overcrowding in public institutions (Mumford et al., 2016). Thus, the contract prisons are sufficient in their current state. Others argue that systemic problems, combined with the philosophical objection to paying private companies to strip people of their rights, justify the abolition of all private prisons (Craig & Cummings, 2020). To this end, President Biden signed an executive order for the DOJ to not renew its contracts with private detention facilities on January 26, 2021 (The White House, 2021). This order however, does not apply to state penal institutions, nor does it order the DOJ to end existing contracts. In addition, it does not mention the Department of Homeland Security (DHS), which heavily contracts with private detention facilities (Ahmed, 2019). Therefore, contract prisons will almost certainly continue to exist within the United States in some form, warranting an ongoing debate on their merits. A handful of penal institutions in states and other countries, however, have experimented with different incentives in their contracts, such as performance and personnel incentives that reward companies based on the quality of their staff and their results. It is on this last, more novel option that this study focuses. The research in this study is primarily qualitative, using secondary analysis to examine government contracts, the results of private prisons with a different incentive structure, and other qualitative studies on incentives. This study does employ some quantitative data to outline the problems within public and private prisons. This study answers the following question: do government contract incentives and stipulations besides per diem rates have the potential to result in higher quality infrastructure and better results from private prisons? In addition, which incentives are best suited for this purpose? This study hypothesizes that performance and personnel incentives in contracts with private prisons are more effective in fostering safety for inmates, eventual rehabilitation of those inmates, and decreased recidivism rates. In tandem with a push for more transparency from contract prisons, this hypothesis concludes that the rampant problems in the prison system are fixable from a legal, contractual perspective.

Literature Review The framework surrounding contracts between governments and private entities in general is a conceptually complex issue. Many studies advise greater government control over private actions during the contract period. Ulrika (2009) asserted that private companies, such as banking, health services, and satellite navigation systems, should generally be more regulated via accountability mechanisms than they are in the status quo. However, because of vague collaboration goals and fluctuating output targets, the precise accountability structures are unclear. Others disagree over Fall 2021 • 55


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whether vague goals necessitate a variety of different accountability structures. For example, Cohen (2008) stated that the most standard tool for government contracts with private entities is an incentive structure that alternates between specific rewards and penalties. Explaining his theory for incentives, Cohen (2008) wrote: These work best when they are the result of the accomplishment of specific, verified performance measures. For example, when a firm that is installing subway tracks completes the work a month ahead of time, it is given a bonus for every day the project comes in ahead of schedule. In fact, an even better technique links a similar penalty clause to late completion. The point of an incentive is that it is only useful if it inspires the specific changes in behavior that improve organization performance. (pg. 138) While a high-level debate occurs in the general business realm, the conflict on the jurisdiction of private prisons is a more narrow topic. Some literature concludes that the problem within private prisons is not the lack of general oversight but rather, the autonomy of private companies to make daily decisions that are not specified within the contract. Headley & Garcia-Zamor (2014) thus concluded that the only means of quality improvement in private prisons is more transparency. They suggest that incentives alone do not prevent maladministration without the added step of reforming transparency in all facets of private prisons. Others, instead of digging into the weeds of policy specifics, argue that the dual nature of private prisons necessitate the forsaking of some values, whether on the market or their own correctional facilities. From this perspective, competitive environments and institutional corrections environments conflict and create a catch-22 where private prison companies cannot satisfy the demands of each sphere (Ogle, 1999). Beyond the discussion on structures of accountability, the literature disagrees on whether private prisons or public prisons are better in terms of cost, recidivism rates, and quality of inmate care. Some simply conclude that the data the Bureau of Prisons gathers on public prisons and its private contractors are not comparable because of different methodologies (Larence, 2007). Others assert that private prisons are significantly inferior to their public counterparts. A research brief from In the Public Interest (2016), summarized studies from dozens of states and concluded that individuals incarcerated in private correctional facilities ultimately have a higher rate of recidivism. They pointed to a higher level of violence as the driving force behind this conclusion, largely because the administration cut corners on staffing and purposely cut inmates off from their communities with exorbitant telephone fees and visit bans. Another more quantitative study concluded that private prisons are 1.5% more costly after the first 25 years of existence and 3.0% more costly after 40 years (Mamun et al., 2020). This approach combines base-level costs with both incarceration and recidivism estimates to produce comparable data. A segment 56 • Fall 2021


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of the literature that declares private prisons inferior also recommends abolishing them. The most common element in these studies is the argument that for-profit prisons do not belong in the U.S. criminal justice system because of moral violations. Some, like Craig & Cummings (2020), make the legal point that private prisons violate the constitution in a number of areas like the Eighth Amendment and the Thirteenth Amendment by treating people with cruelty and as slaves. A large and more recently emerging section in this debate makes the case that private prisons are not very different from public prisons. Some analyze the privatization of services like health care in public prisons and conclude that public prisons ultimately act similarly to private prisons in many of their interior departments (Aviram, 2015). Pfaff (2021) in particular takes a comprehensive approach to this comparison. He concludes that profit maximization exists in both sectors, which often leads to the same problems of cutting corners within facilities, inadequately training staff members, and shoddy programs that result in equally high recidivism rates. In fact, he suggests that the bad habits found extensively in private prisons may be less entrenched than within their public counterparts; this is because public prisons give more of an economic stimulus to their communities as well as boost voting rolls through gerrymandering. Government officials are thus more protective of public prisons. Studies that focus on judicial intervention in public and private prisons additionally find nearly equivalent rates. Conjointly, others point out that private prison employees do not possess qualified immunity, so inmates from private facilities may actually find it easier to pursue lawsuits (Burkhardt & Jones, 2016). When combining savings, quality of service, drug use, and violence, most studies conclude that public and private prisons have comparatively poor results and recommend continued reform of the overall criminal justice system (Volokh, 2014). Reforming the contract process and content of for-profit prisons involves a considerable swath of reform proposals and academic studies. Nobel-prize winning economist, Oliver Hart, noted that contractual incompleteness, unlike other private sectors, does not motivate quality improvement for private prisons, and contracts should instead focus on outcomes (Hart et al., 1997). This study points out, “existing shreds of evidence suggest that in important dimensions, such as prison violence and the quality of personnel, prison contracts are seriously incomplete. This incompleteness can, and sometimes does, give rise to quality shortfalls in private contracting” (Hart et al., 1997, p. 1152). Hart et al. also recommended specifying standards on the use of force and measuring outcomes like recidivism instead of overemphasizing accreditation and hours of staff training. Outside of contractual incompleteness, many studies concern themselves with the process of drafting contracts and the oversight that’s subsequently involved. These cover the gamut with some suggesting that the government should solicit competition more actively in the prison contract process (Tartaglia, 2014). Others focus on whether the government should promote harsh prison conditions. Chen & Shapiro (2007) conclude that Fall 2021 • 57


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harsh prison conditions do not aid in rehabilitating criminals and often harm the process. They do not, however, note what aspects of incarceration may increase post-release crime. The final segment of contract literature emphasizes the unique opportunity in private prison contracts to influence institutional practices by means of incentives. Some like Pfaff (2021) urge, “to ensure that the firms emphasize cutting recidivism and advancing the intermediate goals, the contracts should be written such that the firms will lose money on the contracts unless the goals are substantially met” (pp. 1013-1014). In this context, intermediate factors include school attendance, housing, and participation in drug treatment programs after release. Other studies similarly argue for recidivism incentives and universal standards but state that they should be based on individual results and take the form of rewards instead of penalties (Bushnell, 2019). Taking an even more nuanced approach, some like Mumford et al. (2016) recommend that contract incentives not only include recidivism outcome provisions but also, “should include considerations of factors like inmate health and security needs when evaluating the costs and quality of their facilities” (p. 7).

Data and Methods This study takes a qualitative approach to the research question by analyzing pertinent case studies, both in the United States and internationally, honing in on particular results for private prisons to target, and observing various approaches to contract structure. In addition, the study uses quantitative data to first outline the issues within private prisons that should be reformed via contract incentives and then examine the results of certain international prisons. While a purely quantitative approach would compare the differences between the few prisons that have implemented nuanced contract incentives and the hundreds of prisons that operate on a per diem basis, such a method would not aid in deeply understanding an answer to the research question. As Larence (2007) discovered in a report for the Government Accountability Office, the Bureau of Prisons keeps different numerical records on the prisons that it operates and the prisons with which it contracts, rendering public and private data impossible to compare. A qualitative approach with some quantitative underpinning allows for a deeper and broader picture of the issue as a whole. This study operates under the assumption that private prisons will exist in the United States for the reasonably foreseeable future. While President Biden issued an executive order regarding private prison closures, the order neither applies to the DHS nor to state institutions (The White House, 2021). Additionally, the executive order only calls for the DOJ to abstain from renewing previous contracts. Past efforts, like that of President Obama in 2016, only sought to reduce the private prison population to “less than 14,200 inmates” (Yates, 2016, para. 5), instead of cutting off contracts altogether. Therefore, the question is not one of abolition, but 58 • Fall 2021


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of reform. The study begins by examining the problems that plague both public and private prisons such as lockdowns, high recidivism rates, and general maladministration. It proceeds to analyze prisons in Pennsylvania and New Zealand that have implemented uncommon incentive structures and observes the contract structure and social context that made such reforms possible. Finally, the study recommends incentives based on performance in both the state and federal government contracts and details the necessary processes for these reforms in the United States prison system. A simple term in the context of the study is per diem payments, which are fees that private prisons collect for each prisoner per day. A more complex term that impacts the conclusion of this study is recidivism rates, which are generally understood to be the rate of formerly incarcerated individuals who return to illegal activity after their prison sentence. Defining this term so simply, however, ignores the nuance of benchmarks that these individuals may achieve. This study thus considers several intervening variables that penitentiary institutions can use to measure success besides the black and white situation where individuals either remain inside or outside prisons.

Research Office of the Inspector General Report While the United States holds only 8% of its prisoners in private facilities (Pfaff, 2021), ire toward private prisons has existed for quite a few years. The movement gained significant legitimacy in 2016 when the Office of the Inspector General from the DOJ published a lengthy report detailing the ineptitude of the Bureau of Prisons after monitoring their contract prisons (Office of the Inspector General, 2016a). They surveyed data from fourteen private prisons before comparing them to public institutions and they only physically visited three out of the fourteen prisons. At two of these three, they discovered that multiple inmates were being housed in Special Housing Units, separated from the general prison body with either a small group or in solitary confinement. None of these inmates had committed any misdemeanors that warranted their isolation, yet the Bureau of Prisons had solved this issue while supposedly monitoring the actions of the prisons with which they contracted. The Office of the Inspector General also concluded that contract prisons usually experienced more security-related incidents per capita than their public counterparts. The report concluded with four recommendations for the Bureau of Prisons to implement (Office of the Inspector General, 2016b). Two of these recommendations were that the BOP verify on a more consistent basis that prisoners receive basic medical exams and immunizations and that the BOP periodically verify whether staffing levels for correctional officers meet contract requirements. Fall 2021 • 59


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Bureau of Prisons Response The responses to these recommendations were misapplied or simply disingenuous. In the Bureau of Prison’s response to this independent audit, it agreed with all four recommendations and stated multiple times that “guidance will be drafted” to ameliorate the issues identified by the DOJ (Office of the Inspector General, 2016b, p. 75). While the BOP created these guidelines, it failed to reform the structure of its contracts to mention penalties or incentives regarding the issues targeted by the DOJ. In addition, in the response by one of the CCA contract prisons to the report, it defended its subpart results by pointing to the greater quantity of “groups of inmates that strongly define their identity by geographical areas, such as the Mexican state they are from” (Office of the Inspector General, 2016b, p. 76). While the empirical evidence is rather clear that holding inmates of Mexican descent does not affect violence levels (Takei, 2016), that is hardly the point. Deeply lacking in nuance, this thinly veiled attack on ethnicity is representative of a more extensive issue among private prisons in that they are strongly opposed to reform, even the softly recommended variety. Additionally, the response by the Bureau of Prisons as an institution left much to be desired, promising weak solutions to difficult hard problems. On one occasion, the DOJ report cited a situation where an inmate could not breathe, and was put on a waitlist by the prison instead of seeking immediate treatment (Office of the Inspector General, 2016b, p. 42). Tragically, the inmate died, lacking medical treatment. When the Bureau of Prisons reported on this incident, they took neither explanatory nor punitive measures to remedy the situation. Summarizing the BOP response, the OIG reported that “[C]ontractor deficiencies went uncorrected and corrective actions were delayed at both facilities. Delaying corrective action increases the likelihood that deficiencies identified in a mortality review could be repeated, thus putting other inmates at risk” (Office of the Inspector General, 2016b, p. 48).

Big Picture Issues While this study merely comprises one data point, albeit a data point that stretches four years, it illustrates two issues that are pervasive in the criminal justice system and the contract prison relationship specifically. Contract prisons resist change, and the government organization in charge of monitoring them neither successfully monitors whether they adhere to the contract nor offers concrete remedies when incidents are documented.

Documented Contract Violations Thankfully, many contract violations are documented. For instance, the state of 60 • Fall 2021


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Idaho conducted an investigation into a particularly violent private prison in 2012 and discovered that CoreCivic, the company in charge of the prison, had understaffed its facility by thirteen officers—the equivalent of 26,000 man-hours (In the Public Interest, 2016, p. 6). In Mississippi, a state that has suffered an inordinate number of lockdowns and security-related incidents in its private prisons, discovered that the GEO Group had understaffed at least both a youth correctional facility and a regular correctional facility by several officers (In the Public Interest, 2016, p. 6). The discovery of these violations, however, is not indicative of an eradication of issues in private correctional facilities. Both CoreCivic and the GEO Group have been identified as understaffing prisons that led to violent behavior. These two organizations own most of the contract facilities in the United States, associating both with the DOJ and the DHS (Duprey, 2021).

Per Diem Rates A significant reason for this understaffing and violence could very well be the per diem rates that contract prisons receive. Since prisons receive more money for each prisoner they hold, they have an incentive to either gain new inmates or maintain existing inmates. For example, prisons in Arizona have a per diem rate of $69.57, which was set by the Bureau in charge of their operations (Arizona Procurement Portal, 2021). As Pfaff observes concerning the deleterious nature of per diem incentives in Arizona and in general, “Even worse, a per diem encourages them to cut programming and training and staffing, since the only way to make a profit is to push costs below what the per diems bring in” (2021, pg. 995-996). This seemingly nebulous claim is supported by empirical research, which indicates that on average, private prisons hire one correctional officer for every 6.9 prisoners, as opposed to one for every 4.9 inmates in public prisons (Mumford et al., 2016).

Disadvantages & Mismanagement While it would seem reasonable to assume that fewer officers entails higher quality programs or lower overall costs for private prisons, neither has been found to be true. Studies in Ohio and Arizona specifically, as well as nationwide studies, have found the short term cost advantages for private prisons to be minimal or absent altogether (Gotsch & Basti, 2018). In the long term, private prisons appear to be more costly (Mamun et al., 2020). In addition, as organizations cut corners, violence rates and recidivism rates both rise (Tartaglia, 2014). The National Council on Crime & Delinquency sponsored a study that sums up the relationship between these negative variables and ties them to problems with the creation and execution process of contracts with private prisons. In examining multiple state and federal facilities, it concludes, Fall 2021 • 61


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The experience of various jurisdictions has demonstrated that contracts executed with private prison companies are often poorly drafted and may minimize or omit key provisions, which can lead to numerous problems including inadequate contractor performance, absence of transparency, abuse of prisoner rights, and an overall lack of accountability. (Hartney & Glesmann, 2012, p. 15) This lack of accountability and specificity within the contract often leads to management confusion. Recently, a contract was terminated with a private detention facility in Tennessee because “a little disagreement over who should be fixing what” (Bozelko, 2021, para. 4). Another common instance where contracts are not specific is in the rehabilitation sector. Florida prisons, like many across the nation, outsource their rehabilitation program training to another private company. The process that the company should follow in establishing this program, however, is not specified. The contract merely reads “the person, firm, or other business entity carrying out the provisions of the Contract shall be deemed to be substituted for this agency insofar as dealings with such corporation are concerned” (The Florida Senate, 2012, section 6). Some of the vagueness in the rehabilitation sector may be due to the fact that the BOP lacks sufficient resources to further invest in rehabilitation programming (James, 2016). In addition to contract vagueness, other contracts include lockup quotas, mandating a percentage of beds that must be filled for prisons to maintain their contracts. Previous research indicates that the most common lockup quota is 90%, and some prisons are even held to 100% (Watson, 2015).

Pennsylvania In light of these systemic issues, caused by some combination of perverse incentives, understaffing, and violence, a few prisons have attempted a different approach to administering their institutions. In 2013, Pennsylvania scrapped all of its prison contracts and offered them on a performance basis (Gilroy, 2015). The measure for success that the government used was whether the companies reduced recidivism rates past a certain benchmark for the prison populations that they managed. The state has found success in this program thus far, lowering recidivism rates for 2 years in a row. From 2014-2015, the recidivism rate decreased by 11.3%. If the companies were not able to decrease recidivism rates past a particular level, the government could terminate the contract. Conversely, if the companies do reach the benchmark, not only do they receive a bonus but potentially also a 1% increase in the per diem rate for each inmate. Six out of the 42 prisons achieved this latter result (Gilroy, 2015). Pennsylvania paired its carrot-and-stick approach with the possibility of a per diem increase for the prisons themselves and an incentive for the individual 62 • Fall 2021


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prisoners, called the Recidivism Risk Reduction Incentive. Under this program, non-violent prisoners can complete particular programs and job training provided by the prison itself in order to reduce their prison sentences. This program prompts both the prisoner toward good behavior and the prison as an institution toward developing quality programs. The most recent statistics in 2018 indicate that the five-year recidivism rates for individuals who qualified for this incentive dropped by nearly 10%, and the state of Pennsylvania saved $414.4 million because of reduced prison stays (Bucklen et al., 2018, p. 1). This hybrid approach has thus benefited the state in economic savings, thousands of prisoners in reduced prison stays, and the prison organization itself in receiving bonuses for reduced recidivism rates overall, particularly from the RRRI program.

United Kingdom Other countries have also implemented similar programs in their contract prisons, displaying positive results. In the United Kingdom, the government launched a pilot program for several years at HMP Doncaster in 2011. This contract approach focused on the penalty rather than the incentive. If the prisons did not decrease the recidivism rates by 5% past the 2009 benchmark of 58% in the three years of their contract term, then the government would reclaim 10% of the contract payment (Branigan, 2015). The contract did also stipulate that, for every percentage point beyond 5% to which Serco was able to reduce the recidivism rate, a proportional bonus would be awarded. Unfortunately for Serco, the company in charge of HMP Doncaster, they did not meet this mark, though they did reduce overall recidivism by 3.3%, which was considerably better than the national recidivism rate deduction of 0.4%. In addition, Serco reduced the recidivism rate for inmates serving a oneyear sentence by 6.3%, as compared to a national average of 1% (Branigan, 2015). Unfortunately, the overall contract and penalty values were not specified within the report, as is the case with most prison contracts. The UK government also implemented a pilot program at HMP Peterborough, run by shareholders from a social impact bond, which reduced recidivism rates by 8.4%, surpassing the 7.5% benchmark necessary to receive a bonus (Ministry of Justice, 2014). While this prison does not match the typical contract structure, the pure reward incentive appeared to work well.

Australia Australia has also implemented contract incentives and penalties linked to recidivism reduction in multiple prisons. For the prison at Ravenhall, the government offered up to a $2 million bonus for surpassing the results of certain other prisons nationwide. For the prison at Melaleuca, the company can receive $15,000 per inmate Fall 2021 • 63


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that does not re-offend in the first 2 years after release (Bushnell, 2019). Finally, New Zealand has also created an incentive structure for one of its contract prisons in Wiri. It earned its million dollar bonus in the first year of creation. Not only does the Wiri prison possess a recidivism-based incentive, but it also includes internal incentives so that the prisoners can be moved toward the gates of the facility upon good behavior, promising a swift release (Eisen & Autrey, 2019). The program at this New Zealand prison is innovative on multiple levels, creating a uniquely hospitable environment for convicts on the mend and focusing on individualized offender plans, which try to locate the cause of the offense and map out a plan for release (Bichell, 2020). The most recent report on this effort states that “in 2019/20, case managers and probation officers prepared offender plans for over 10,000 people in prison, and just over 25,000 people in the community respectively” (Ara Poutama Aotearoa: Department of Corrections, 2020, p. 97).

Intermediate Benchmarks Another factor for institutions to consider in private prison reform is the effect of intermediate standards or goals. Intermediate goals include determining whether a former convict has achieved regular employment or stable housing. Pfaff (2021) posits a redefinition of recidivism by investigating “less measurement of failure, more measurement of these sorts of intermediate successes that we know often lead to (unobserved, and mostly unobservable) desistance” (p. 1007). While factors like stable housing have not often been used as benchmarks for contracts, governments recognize that they do play a role in recidivism. For instance, in the Maryland Opportunities through Vouchers Experiment, the state government attempted to randomly relocate former convicts to stable housing developments far away from their former communities upon release. Evaluating one-year rearrest rates, they determined that both moving and receiving free housing helped to lower recidivism (Kirk et al., 2018). Another intermediate factor is the requirement that some offenders fund their own probation period, though this practice has led to multiple human rights concerns (Ramachandra, 2018). While intermediate factors like probationary practices, stable housing, and employment situations are certainly valuable to monitor, governments should be cautious before codifying progress in these regards as incentives. A Senate report concerning the measure of performance in government programs indicated that institutions should focus on outcomes instead of outputs (McDonald & Patten, 2003). Whereas outcomes are measurable results of a program, outputs are “levels of activity or effort that are realized” (p. 57). The report states that levels of effort are not quantifiable, which makes it very difficult to monitor for monetary compensation.

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Behavioral Economics These facilities have all taken unique approaches to the issue of reducing recidivism, some instituting penalties, others offering bonuses, and more creating an incentive for the prisoners themselves that the prisons are responsible to operate in a kind of miniature contract. The overarching success of the performance-based incentive as a whole is very promising, but it is necessary to distinguish between them to establish a concrete policy so that the government could hypothetically set benchmarks for its contract prisons. Alexander Volokh, an esteemed legal and economic scholar, points to the issue of behavioral economics as a key factor in this contractual decision (Volokh, 2013). According to prospect theory, agents are more motivated by the prospect of avoiding loss than the prospect of pursuing gain. By this measure, penalties would seem to be the wisest course of action. Nevertheless, government negotiators in other sectors of contracting typically set a base price that is lower than necessary to make a marginal profit. Thus, companies work hard to achieve the target and innovate to meet their profit margin. Given the incentives at that benchmark point, companies would then not only break even but make an economic profit because of the bonuses from their contracts (Volokh, 2013). Overall, these kinds of incentives are implemented in order to more effectively balance the polarizing stew of values, perspectives, and institutions within the criminal justice system that makes combining economics and morals “on emotionally charged issues of great public importance” so difficult (Serota, 2021, p. 698).

Conclusion Prisons are purposefully fear inducing, uncomfortable places. Created to punish those who have broken the rules of society, prisons as a whole do not allow for much benevolence. Private prisons in particular possess a business structure by which they profit off the imprisonment of another human being. From this cold economic perspective, it is necessarily impossible to understand a prisoner by walking in his shoes. Nevertheless, the violence, poor quality programs, and maladministration that are generally associated with prisons are not necessary. For private prisons especially, government officials have the opportunity to motivate companies to make a profit in a manner that benefits the prisoners and society in addition to the prison and the government by focusing on performance outputs like recidivism rates. From the evidence found in this paper, performance-based incentives are a legitimate use of government contracting with private prisons, though intermediate benchmarks may not be advisable. From the limited case studies available, these kinds of incentives are more effective in fostering safety for inmates, the eventual rehabilitation of those inmates, and decreased recidivism rates, thus supporting the hypothesis. According to the behavioral economics perspective, offering bonuses as a target for particular Fall 2021 • 65


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recidivism rates motivates companies in an effective manner, though penalties could also be warranted, albeit to a more limited degree. These types of incentives would more responsibly deal with the “environmental catch-22” alluded to by Ogle (1999), balancing the values in the market and government spheres by introducing more competitiveness into a correctional field. In order to lower recidivism rates, private companies like CoreCivic and the GEO Group should deem it worth their time to cease cutting corners, invest in quality vocational training and medical services, and ensure adequate staffing. Some, like Senator Ben Cardin of Maryland, have attempted to pursue better transparency for this process by holding private prisons responsible under the Freedom of Information Act, using the same standards as federal prisons (Ben Cardin: U.S. Senator for Maryland, 2019). Even now, federal and state governments could make those suggestions a reality by codifying them within their contracts. Further studies should investigate whether more rigorous monitoring of contracts or a different method of monitoring are feasible for the current relationship between contract prisons and governments. As previously shown, officials do not catch every error or breach, so including more benchmarks in prison contracts would be helpful but not perfect in the effort to reduce recidivism and rehabilitate offenders. Under the status quo, thousands of prisoners suffer violence in prison, emerge just long enough to get a breath of air in real communities, and then fall back under the grip of incarceration, accustomed to the practice of violence and unaccustomed to normal societal practices in vocation. By tying the wellbeing of these men and women to the wellbeing of the companies that control the private prisons within the United States, this status quo does not have to be a reality.

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Reference List Ahmed, H. (2019, August 30). How private prisons are profiting under the Trump administration. Center for American Progress. https://www.americanprogress. org/issues/democracy/reports/2019/08/30/473966/private-prisonsprofiting-trump-administration/ Ara Poutama Aotearoa: Department of Corrections. (2020). Annual report 2019/20. https://www.corrections.govt.nz/__data/assets/pdf_file/0018/42273/Annual_ Report_2019_2020.pdf Arizona Procurement Portal. (2012, December 17). CACF (ADC No. 040176DC). https://appstate.az.gov/page.aspx/en/ctr/contract_manage_ public/47996 Aviram, H. (2015). Are private prisons to blame for mass incarceration and its evils? Prison conditions, neoliberalism, and public choice. Fordham Urban Law Journal, 42(2), 1-45.https://repository.uchastings.edu/cgi/viewcontent. cgi?article=1993&context=faculty_scholarship Ben Cardin: U.S. Senator for Maryland. (2019, November 5). Cardin introduces legislation to hold private prisons accountable for treatment of federal inmates. https://www. cardin.senate.gov/newsroom/press/release/cardin-introduces-legislation-tohold-private-prisons-accountable-for-treatment-of-federal-inmates Bichell, R. (2020, March 10). Private prisons profit off incarceration. One in Australia shows how to flip the script. Pulitzer Center. https://pulitzercenter.org/stories/privateprisons-profit-incarceration-one-australia-shows-how-flip-script Biden J. R. (2021, January 26). Executive order on reforming our incarceration system to eliminate the use of privately operated criminal detention facilities. https://www.whitehouse. gov/briefing-room/presidential-actions/2021/01/26/executive-orderreforming-our-incarceration-system-to-eliminate-the-use-of-privatelyoperated-criminal-detention-facilities/ Bozelko, C. (2021, February 4). Don’t ban private prisons. Make them part of the solution. Barron’s. https://www.barrons.com/articles/dont-ban-private-prisons-makethem-part-of-the-solution-51612454364

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Branigan, D. (2015, August 5). Payment by results pilot at HMP doncaster. Safe Ground. http://www.safeground.org.uk/payment-by-results-pilot-at-hmp-doncaster/# Burkhardt, B., & Jones, A. (2016). Judicial intervention into prisons: Comparing private and public prisons from 1990 to 2005. Justice System Journal, 37(1), 3952. Bushnell, A. (2019). Cutting costs and reducing reoffending: Redesigning prison contracts for better results. Institute of Public Affairs. https://ipa.org.au/wp-content/ uploads/2019/10/IPA-Cutting-costs-and-reducing-reoffendingRedesigning-private-prison-contracts-for-better-results.pdf Chen, M. K., & Shapiro, J. (2007). Do harsher prison conditions reduce recidivism? A discontinuity-based approach. American Law and Economics Review, 9(1), 1-29. https://www.brown.edu/Research/Shapiro/pdfs/prison041607_ web.pdf Cohen, S. (2008). The responsible contract manager: Protecting the public interest in an outsourced world. Georgetown University Press. Craig, R., & Cummings, A. (2020). Abolishing private prisons: A constitutional and moral imperative. University of Baltimore Law Review, 49(3), 261-312. https:// scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=2072&context=ublr Duprey, R. (2021, February 3). Did President Biden just kill off CoreCivic and GEO group? The Motley Fool. https://www.fool.com/investing/2021/02/03/didpresident-biden-just-kill-off-corecivic-and-ge/ Eisen, L., & Autrey, R. (2019). A critical look at private prisons overseas. Brennan Center for Justice. https://www.brennancenter.org/our-work/analysis-opinion/ critical-look-private-prisons-overseas The Florida Senate. (2012). Title XLVII: 946.515 - Use of goods and services produced in correctional work programs. https://www.flsenate.gov/Laws/Statutes/2012/946.515 Gilroy, L. (2015, August 31). Pay for success contracting reducing recidivism in Pennsylvania. Reason Foundation. https://reason.org/commentary/pennsylvania-contractrecidivism/

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Gotsch, K., & Basti, V. (2018, August 2). Capitalizing on mass incarceration: U.S. growth in private prisons. The Sentencing Project. https://www.sentencingproject.org/ publications/capitalizing-on-mass-incarceration-u-s-growth-in-privateprisons/ Hart, O., Shleifer, A., & Vishny, R. (1997). The proper scope of government: Theory and an application to prisons. The Quarterly Journal of Economics, 112(4), 1127-1161. https://scholar.harvard.edu/files/shleifer/files/proper_scope.pdf Hartney, C., & Glesmann, C. (2012, May). Prison bed profiteers: How corporations are reshaping criminal justice in the U.S. National Council on Crime and Delinquency. http://www.evidentchange.org/sites/default/files/publication_pdf/prisonbed-profiteers.pdf Headley, A., & Garcia-Zamor, J. (2014). The privatization of prisons and its impact on transparency and accountability in relation to maladministration. International Journal of Humanities, Social Sciences and Education, 1(8), 23-34. https:// www.arcjournals.org/pdfs/ijhsse/v1-i8/4.pdf In the Public Interest. (2016, June). How private prison companies increase recidivism: Research brief. https://www.inthepublicinterest.org/wp-content/ uploads/ITPI-Recidivism-ResearchBrief-June2016.pdf James, N. (2016). The federal prison population buildup: Options for Congress. Congressional Research Service. https://fas.org/sgp/crs/misc/R42937.pdf Kirk, D., Barnes, G., Hyatt, J. & Kearley, B. (2018). The impact of residential change and housing stability on recidivism: Pilot results from the Maryland opportunities through vouchers experiment (MOVE). Journal of Experimental Criminology, 14(2), 213-226. https://doi.org/10.1007/s11292-017-9317-z Larence, E. (2007). Cost of prisons: Bureau of Prisons needs better data to assess alternatives for acquiring low and minimum security facilities. United States Government Accountability Office. https://www.gao.gov/assets/gao-08-6.pdf Laughland, O. (2020). Inside the US prison where inmates ‘begged for their lives’ amid days of violence. The Guardian. https://www.theguardian.com/us-news/2020/jan/13/ mississippi-prison-violence-inmates-parchman

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Mamun, S., Li, X., Horn, B. P., & Chermak, J. M. (2020). Private vs. public prisons? A dynamic analysis of the long-term tradeoffs between costefficiency and recidivism in the US prison system. Applied Economics, 52(41), 4499-4511. https://www.tandfonline.com/doi/10.1080/00036846.2020.17 36501 McDonald, D., & Patten, C. (2003, September 15). Governments’ management of private prisons. Office of Justice Programs. https://www.ojp.gov/pdffiles1/nij/ grants/203968.pdf Ministry of Justice. (2014). Payment by results pilot: Final re-conviction results for cohorts 1. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/341682/pbr-pilots-cohort-1-results.pdf Mumford, M., Schanzenbach, D. W., & Nunn, R. (2016). The economics of private prisons. Brookings Institute. https://www.brookings.edu/wp-content/ uploads/2016/10/es_20161021_private_prisons_economics.pdf Office of the Inspector General. (2016a). DOJ OIG releases report on the Federal Bureau of Prisons’ monitoring of contract prisons. U.S. Department of Justice. https:// oig.justice.gov/news/doj-oig-releases-report-federal-bureau-prisonsmonitoring-contract-prisons Office of the Inspector General. (2016b). Review of the Federal Bureau of Prisons’ monitoring of contract prisons. U.S. Department of Justice. https://www.oversight.gov/sites/ default/files/oig-reports/e1606.pdf Ogle, R. S. (1999). Prison privatization: An environmental catch-22. Justice Quarterly, 16(3), 579-600. https://www.tandfonline.com/doi/ abs/10.1080/07418829900094271 PA Department of Corrections. (2018). Recidivism risk reduction incentive 2018 report. https://www.cor.pa.gov/About%20Us/Statistics/Documents/Reports/ RRRI%202018%20Annual%20Report.pdf Pfaff, J. (2021). The incentives of private prisons. Arizona State Law Journal, 52(3), 991-1019. https://arizonastatelawjournal.org/wp-content/ uploads/2021/01/10-Pfaff.pdf

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Ramachandra, K. (2018, February 20). “Set up to fail”: The impact of offender-funded private probation on the poor. Humans Rights Watch. https://www.hrw.org/ report/2018/02/21/set-fail/impact-offender-funded-private-probation-poor Serota, M. (2021). Improving criminal justice decisions. Arizona State Law Review, 52(3), 693-707.https://law.asu.edu/sites/default/files/faculty-research/ centers/a4j/racj/improving_criminal_justice_decisions_-_serota.pdf Takei, C. (2016, August 12). End prisons-for-profit. ACLU. https://www.aclu.org/ blog/prisoners-rights/cruel-inhuman-and-degrading-conditions/endprisons-profit Tartaglia, M. (2014). Private prisons, private records. Boston University Law Review, 94(5), 1689-1744. https://www.privateprisonnews.org/media/publications/ Private%20Prisons,%20Private%20Records,%20Public%20Records%20 Law%20Article%20by%20Mike%20Tartaglia,%202015.pdf Volokh, A. (2013). Prison accountability and performance measures. Emory Law Journal, 63(2), 339-416. Volokh, S. (2014, February 25). Are private prisons better or worse than public prisons? The Washington Post. https://www.washingtonpost.com/news/volokhconspiracy/wp/2014/02/25/are-private-prisons-better-or-worse-thanpublic-prisons/ Watson, J. (2015, July 31). Report finds two-thirds of private prison contracts include “lockup quotas”. Prison Legal News. https://www.prisonlegalnews.org/news/2015/ jul/31/report-finds-two-thirds-private-prison-contracts-include-lockupquotas/ Yates, S. Q. (2016). Reducing our use of private prisons. U.S. Department of Justice. https://www.justice.gov/archives/opa/file/886311/download

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SECTION 504: HOW THE REHABILITATION ACT OF 1973 BECAME THE FIRST LAW TO BAN DISCRIMINATION AGAINST INDIVIDUALS ON THE BASIS OF THEIR DISABILITY Audrey A. Millhouse Abstract In today’s society, it is recognized that individuals with disabilities have the right of equal access to education, the workforce, transportation, and other areas of public life through the Individuals with Disabilities Act and the Americans with Disabilities Act. However, it has not always been this way. Previously, individuals with physical and developmental disabilities were seen as objects of pity and unable to care for themselves. It was landmark legislation in 1973 that represented a change in that perspective. Section 501-508 of the Rehabilitation Act of 1973 was groundbreaking legislation for individuals with disabilities, as it recognized and protected rights held by individuals with disabilities by banning any federally funded programs and services from discriminating against them on the basis of their disabilities. This paper evaluates Section 504 of the Rehabilitation Act of 1973, how it became law, and which public policy model best aids in understanding that process. It will test three different public policy models to discover which best simplifies the process behind Section 504, highlights the most important factors in that process, and offers an explanation for Section 504. The three processes are the Three Streams Model, the Process Model, and incrementalism. This paper concludes that while the Process Model provides a thorough description of the policymaking process, the Three Streams Model and incrementalism best highlight the important factors behind Section 504 and provide compelling explanations for its causes and consequences. ___________________________________

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Introduction It was April 1977 in San Francisco, California, in the federal Health, Education, and Welfare (HEW) building. Over 100 activists occupied the fourth floor, and for some it had been 28 days. These activists had varying physical and developmental disabilities. Some went without necessary care, risking their lives to secure the rights to equal opportunity for themselves and hundreds of thousands of others who were unable to protest. More waited outside, sleeping on the filthy streets for three to four hours a night, wearing pins and raising signs in support of Section 504 of the Rehabilitation Act of 1973. Section 504 protected the rights of individuals with disabilities by banning any organization, program, or agency that received federal funding from discriminating against an individual on the basis of their disability. It had been 4 years since the signing of this groundbreaking legislation, yet no regulations had been implemented, no organizations were being held accountable, and individuals with disabilities were still facing discrimination from schools, public transportation, and federal programs. Activists in April 1977 demanded the implementation of regulations under Section 504. After 28 days, they were signed. The signing of regulations for Section 504 was momentous for the movement to protect the rights of equal access to education, transportation, and other areas of public life for individuals with disabilities. It was the first legislation that recognized the rights held by individuals with disabilities. It paved the way for future legislation like the Americans with Disabilities Act and the Individuals with Disabilities Education Act. How and why did this landmark legislation pass? Who were the actors pushing for this legislation? Why was it passed as part of the Rehabilitation Act of 1973? Why did it take four years for regulations to be implemented? This paper will analyze three different policymaking models to determine which model best aids understanding the answers to these questions: the Three Streams Model, the Process Model, and incrementalism. In determining which policymaking model is best used to analyze Section 504, this paper will take into account what policymaking models should accomplish. In Understanding Public Policy, Dye (2017) establishes three principle rules for policy models. This paper will use all three of them. First, policymaking models are supposed to simplify and clarify one’s thinking about politics and public policy. The factors that play into public policy can be numerous and often overlap. However, a policymaking model should break down each element in order to simplify the real-world process behind public policy. Second, a policymaking model should provide direction by highlighting what is and is not important to public policy. While there are many factors, it is important to note the most influential ones to better understand the policy. A policymaking model should shed light on the policymaking process by separating the important from the unimportant. Third, a policymaking model should suggest explanations for public policy and make predictions about its Fall 2021 • 73


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consequences. It is meant to explain why a particular public policy was enacted and determine what the ramifications of such policy could be. In light of these qualities, this paper will test the Three Streams model, the Process Model, and incrementalism against the process behind Section 504 to determine which model best serves the purpose of simplifying the process, highlighting the important factors, and providing insight to its causes and consequences.

Literature Review Three Streams Analogy John Kingdon (2011) offers an in-depth analysis of the policymaking process in his Agendas, Alternatives, and Public Policies. Kingdon explains the influential factors that must be present for the success of a public policy using an analogy. In his analogy there are three streams: the policy stream, the political stream, and the problem stream. These streams run independent from each other, though they will sometimes converge. When all three streams run together, they create an opportunity window to open. When an opportunity window opens, it provides a chance for a certain policy to pass through and become law. However, an opportunity window is only open for a brief time before it begins to close again. Bigger problems arise, political turmoil directs effort in a different direction, or policy-makers are simply blind to the open window ahead of them. Therefore, the success of a policy is determined by the window opening long enough for the three streams to pass through together. It is necessary for the three streams to continue running together quickly enough to take hold of that open window (Kingdon, 2011). To determine whether the Three Streams Model would be the choice model to aid understanding of Section 504 as a public policy, this paper will apply it to the history of Section 504, as well as the three criteria established by Dye. To meet these criteria, the Three Streams Model needs to simplify the process behind Section 504, encapsulate all the important influences and forces, and demonstrate how they work together. Additionally, if the Three Streams Model offers explanations for the causes and consequences of Section 504, researchers would expect to have a better understanding of why Section 504 was selected and why it was passed under The Rehabilitation Act of 1973.

Process Model In Understanding Public Policy, Thomas Dye presents a different policymaking model: The Process Model (Dye, 2017). The Process Model centers more on how public policy is made and less on the actual content or consequences of public policy. The Process Model focuses on the processes occurring in the political 74 • Fall 2021


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system through the activities performed by various political actors. According to Dye there are six steps in the policymaking process: problem identification, agenda setting, policy formulation, policy legitimation, policy implementation, and policy evaluation. These six steps are used to organize each of the processes and political actors involved in the implementation of public policy. However, as Dye explains, in reality, the steps and actors are often muddled and overlap (Dye, 2017). Within the agenda-setting step, there are three different models for how a policy finds a place on the agenda: top-down, bottom-up, and the mass media (Dye, 2017). The top-down model states that the agenda setting is controlled mainly by elites, political entrepreneurs, the president and his staff, Congress and legislative staff, and interest groups. The bottom-up model assumes that the agenda is set by the people who make their opinions known through social networking platforms, websites, and communicating with decision makers. Though the Process Model provides a simple description of public policy generally, this paper will compare the Process Model to the history of Section 504 to determine whether it can simplify the process behind that policy specifically. In comparing the Process Model to the history behind Section 504, this paper will also determine whether the process and actors deemed most important by the model highlight the most important actors in the making of Section 504. The Process Model also needs to offer some explanation for the causes behind Section 504 and its potential effects.

Incrementalism Incrementalism is another model for analyzing the procedure behind public policy. First introduced by political scientist Charles E. Linblom, incrementalism is based on the assumption that there are several flaws in the underlying assumptions of rationalism (Dye, 2017). Rationalism is a policymaking model developed earlier, which suggests that decision makers choose the policy alternative with the maximum benefit exceeding its cost. In order for this to be accomplished, rationalism assumes that decision makers can be aware of all possible policy alternatives along with their potential benefits and consequences and choose the alternative with the most drastic cost to benefit ratio (Dye, 2017). Incrementalism is based on the assumption that it is impossible for policymakers to make truly rational decisions when choosing a policy (Dye, 2017). There is an inadequate amount of information, time, and will among decision makers to weigh every existing policy alternative before determining which alternative provides the most benefit per cost. Instead, incrementalism suggests that current public policy mainly consists of modified versions of past policy. The reason behind this view is the assumption that decision makers tend to pursue modifications of current policy, as opposed to new policies, because it is easier for both parties to agree to maintain the Fall 2021 • 75


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status quo rather than depart from it with new policies. It is more time-efficient for decision makers to begin with a former policy as a foundation to build off of, rather than starting from the ground up . If incrementalism were to accurately describe the process behind the enactment of Section 504 and its statutes, researchers would expect to see a long, gradual history of policy regarding the protection of individuals with disabilities before the enactment of Section 504. If incrementalism were to provide explanations for the causes of Section 504, researchers would find that policy-makers were more inclined to agree on passing Section 504 based on the existence of previous policy. Finally, if incrementalism were to make accurate predictions regarding the consequences of Section 504, it would presume a future progression of amendments to Section 504, as well as a continuation and expansion of civil rights policy for individuals with disabilities through new legislation.

Research Section 501-504 Section 504 is one of four sections that seek to provide equal employment and service opportunities for individuals with disabilities included in the Rehabilitation Act of 1973. Originally under “Title V – Miscellaneous,” Section 504 was published along with sections 501, 502, and 503. Section 501 established the Interagency Committee on Handicapped Employees, intending to periodically review the sufficiency of hiring and placement of individuals with handicaps among each department of the executive branch (Rehabilitation Act, 1973). It required federal agencies to submit an affirmative action plan for hiring “handicapped” individuals and the methods by which they would provide for those individuals’ needs. Section 502 planned for the modification of public transport to accommodate individuals with disabilities. Section 503 required that all parties in contract with the federal government take affirmative action in the hiring of individuals with disabilities (Rehabilitation Act, 1973). While Sections 501, 502, and 503 required that employers take affirmative action in hiring individuals with disabilities by removing employment and architectural barriers, Section 504 banned federally assisted organizations from discriminating against disabled individuals seeking to participate in programs or receive services. As passed in 1973, Section 504 states, “No otherwise qualified handicapped individual in the United States, as defined in section 7(6), shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” (Rehabilitation Act, 1973, p. 394). Section 7(6) defined the term “handicapped individual” as “any individual who (A) has a physical or mental disability which for 76 • Fall 2021


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such individual constitutes or results in a substantial handicap to employment and (B) can reasonably be expected to benefit in terms of employability from vocational rehabilitation services provided pursuant to titles I and III of this Act” (H.R. 8070, 1973, p. 361). Section 504 is significant because it was the first piece of legislation that recognized the right to equality held by individuals with disabilities by protecting them against discrimination on the basis of their disabilities. It acted as precedent for the American with Disabilities Act of 1990 and the Individuals with Disabilities Education Act, originally the Education for All Handicapped Children Act of 1975. James L. Cherry, an activist, stated that without the regulations under Section 504, “disability rights would still be in the dark ages, and there would be no American with Disabilities Act” (Fleischer & Zames, 2011, p. 50).

The History of Section 504 The Rehabilitation Act of 1973 began as the Servicemen’s Readjustment Act of 1944, a GI bill of rights that provided an opportunity for a college education to men and women returning home from World War II. However, many veterans, handicapped from the war, faced discrimination from colleges and universities that were either incapable of or resistant to adjusting their program and services to comply with veterans’ individual needs (Pelka, 2012). This discrimination was not only experienced by handicapped veterans seeking a college education, but also by handicapped individuals of all ages seeking an education. Outside of education, individuals with disabilities experienced discrimination from renters, employers, public transportation, and unaccommodating architecture (Pelka, 2012). In response to this discrimination, numerous organized groups formed such as the United Cerebral Palsy Associations, Inc. (founded in 1949), the National Association of Parents and Friends of Mentally Retarded Children (founded in 1950), The American Federation of the Physically Handicapped, The National Federation of the Blind, The National Association of the Deaf, and The League of the Physically Handicapped in the 1960s (Pelka, 2012). In addition to interest groups, presidents promoted discussion of the care and protection of individuals with disabilities at the federal level. President Kennedy introduced committees for researching intellectual disabilities and provided funding for research centers and community based care centers for people with disabilities. President Johnson, introduced the President’s Committee for People with Intellectual Disabilities which advised the President and HEW secretary (“John F. Kennedy and People With Intellectual Disabilities”, n.d.). Before The Rehabilitation Act of 1973, Democratic Senator Hubert Humphrey from Minnesota, Republican Senator Charles Percy from Illinois, and Democratic Representative Charles Vanik from Ohio, attempted to amend the 1964 Civil Rights Fall 2021 • 77


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Act with a provision that protected the rights of individuals with disabilities in 1972. However, the 92nd Congress did not include such a provision. Despite this first unsuccessful attempt, legislators and members of their staff believed that, after the successful Civil Rights Act, they would be able to “tack-on” provisions that protect the rights of individuals with disabilities on other pieces of legislation (Fleischer & Zames, 2011, p. 50). That is exactly what the staff members of the Senate Committee on Labor and Public Welfare did. In the final draft of the Rehabilitation Act of 1972, staff members added Sections 501-504. It took three attempts for the Rehabilitation Act of 1973 to pass through without a Presidential veto (Fleischer & Zames, 2011). In July of 1972 and March of 1973 President Nixon vetoed the Rehabilitation Act of 1972, specifically explaining his reasoning against Section 504. President Nixon claimed that it would be too confusing and too expensive to add medical responsibilities that would jeopardize the original intentions of the vocational act. He called it a “Congressional fiscal irresponsibility” (United States, 1972, p. 1579) and claimed that by “promising increased Federal Spending for this program in such a large amount, S. 7 would cruelly raise the hopes of the handicapped in a way that we could never responsibly hope to fulfill” (United States, 1973, p. 2). After the third and final attempt, the Rehabilitation Act of 1973 was passed into legislation with Sections 501-504. However, the process of the implementation for Section 504 extended beyond merely passing it into law. Immediately, advocates pushed for regulations to implement Section 504, because it, though breakthrough legislation, was ineffective without any regulations for agencies and organizations to abide by. There were a few key players that pushed for these regulations.

Section 504 Regulations One of the first and most influential activists was former Howard University student, James L. Cherry, who personally faced discrimination because he was confined to a wheelchair. He began advocating for regulations by writing letters to HEW, which resulted in nothing. Cherry then partnered with Victor Kramer, attorney for Public Interest Representation at Georgetown Law, to initiate a lawsuit against President Ford’s HEW Secretary, David Mathews, in effort to find legal enforcement for the issuing of regulations (Fleischer & Zames, 2011). On July 19th, 1976, after a complicated court hearing including a cross motion for a summary judgement, Judge John L. Smith of the U.S. District Court issued an order requiring that HEW develop and implement regulations for Section 504 “with all deliberate speed” (Fleischer & Zames, 2011, p. 51). However, even after the court order, regulations were not implemented expeditiously. Regulations were developed, but, before they were implemented under Mathews, the Carter administration began as did a new secretary of HEW, Joseph Califano (Fleischer & Zames, 2011). By the time the Carter administration began, it had been almost four years since 78 • Fall 2021


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the passing of Section 504. However, instead of implementing regulations as written under the former HEW Secretary, Joseph Califano delayed them further by instituting a task force to review them without any representation from the disability community (Landes, 2000). According to Kitty Cone, a leading disability rights activist from the 1970s through the 1990s, the American Coalition of Citizens with Disabilities (ACCD) knew that Califano’s taskforce planned on “watering down the regulations” (Landers, p. 116). In response, the ACCD demanded that either the regulations be enacted “unchanged” by April 5th, 1977, or they would “take action” (Landers, p. 115). By April 5th, the regulations had still not been signed, so the ACCD and other interest groups acted on their word by protesting at federal offices of HEW across the country. In San Francisco, over one hundred disability rights activists sat in the HEW buildings for 25 days. On April 28th, Califano finally signed the regulations, unchanged, along with the Education for All Handicapped Children Act (Fleischer & Zames, 2011). Since the enactment of Section 504 and the signing of its regulations, numerous amendments have been passed regarding the civil rights of individuals with disabilities. The National Defense Act, enacted in 1916, provided opportunities for homecoming soldiers, especially recognizing injured soldiers. In the following year, the Smith-Hughes Act recognized the government’s responsibility for providing vocational rehabilitation for disabled veterans. Legislation in 1948 prohibited U.S. Civil Service employment from discriminating against World War II veterans based on their physical handicaps. The 1954 Vocational Rehabilitation Amendments expanded the government’s role in providing funding for research into rehabilitation, remodeling of rehabilitation facilities, and increasing services for those with mental illness and disabilities (Disability Legislation History, n.d.).

Analysis Three Streams Analogy John Kingdon’s Three Streams Model can be applied to Section 504 to help clarify the process leading up to its implementation and can highlight the most influential factors. Each of the actors and the circumstances surrounding Section 504 can fit into one of the three streams. In the political stream, congressmen demonstrated their will to pass legislation protecting individuals with disabilities from discrimination through their first attempt to include such a section in the Civil Rights Act. Their second, third, and fourth attempts were also aimed at including that same legislation in the Rehabilitation Act of 1973. Their insistence to pass Section 504 was apparent through their continuous attempts to pass it through with the Rehabilitation Act, despite both of Nixon’s vetoes which targeted the inclusion of Section 504. In the problem stream, members of the disability community recognized that Fall 2021 • 79


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there existed a nationwide discrimination against individuals on the basis of their handicaps and disabilities. Since before the 1960s, activist groups, consisting of individuals with disabilities and their parents, had rallied for the recognition and protection of the same rights to protection against discrimination that the rest of the nation exercised. The general policy idea of protecting individuals against discrimination had been floating in the policy stream and had already proven successful in policy such as the Civil Rights Act of 1963. However, Senator Hubert Humphrey was one of a few individuals to take that idea and modify it in order to address the problem of individuals facing discrimination on the basis of their disabilities. Lastly there was a clear opportunity window: even staffers at that time could see it. With the previous passage of the Civil Rights Act of 1964, staff members of the Senate Committee on Labor and Public Welfare saw an opportunity to push through legislation written in the same language as the Civil Rights Act. They took advantage of that opportunity. In addition to simplifying the process leading to Section 504 and highlighting its most important actors, the Three Streams Model offers explanations regarding the causes of Section 504. It does not merely describe the process, but offers insight into the causes behind the movement of Section 504 through the policymaking process and why it was passed. Through each moving part, the Three Streams Model takes into account the motivations, will, and opportunity of individual supporters who moved Section 504 along the policymaking process. It explains why Section 504 was passed under the Rehabilitation Act of 1973, not before or after. The Three Streams Model can also make predictions about the consequences of Section 504. This model hypothesizes that Section 504 itself could create a new opportunity window for successful civil rights legislation and amendments. After the success of Section 504, the problem, policy, and politics streams may have continued to run together, and policy-makers continued to direct their efforts toward solving civil rights issues.

The Process Model The Process Model provides a categorical description of the processes behind the implementation of a policy. Using the process model, researchers are able to simplify each step that was taken and each actor that influenced each step behind Section 504. Just as Dye describes through the Process Model, the first step policymaking process of Section 504— problem identification —took place through interest groups, such as the National Federation of the Physically Handicapped, the National Federation of the Blind, and the League of the Physically Handicapped, who shed light on the nationwide problem of the discrimination against individuals on the basis of their disabilities. 80 • Fall 2021


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The second step, agenda-setting, occurred through President Kennedy’s and President Johnson’s research and advising committees, which directed the attention of policy-makers to the issues faced by individuals with disabilities. Applying Dye’s three different agenda-setting models, it is clear that the agenda-setting process in this case was top-down. It is unclear who exactly accomplished the third step, policy formulation. However, it is clear that Section 504 and the sections preceding it were written in the same language as legislation in the Civil Rights Act. Policy legitimization, the fourth step, was accomplished through Senator Hubert Humphrey, Senator Charles Percy, and Representative Charles Vanik, who advocated for its spot on the Civil Rights Act and the Rehabilitation Act of 1973. The fifth step, however, is where the process behind Section 504 strays from Dye’s Process Model. Step five, policy implementation, is completed by the President and White House, executive departments and agencies, independent agencies, or government corporations. While the actors that actually had the power to complete this process and pass regulations for Section 504 were executive departments and agencies, they were not the same actors that pushed for these regulations. All three secretaries of HEW under the Nixon, Ford, and Carter administration were supposed to issue regulations for Section 504. The first two avoided their role in implementation, and the third was forced into signing regulations through a lawsuit and the ACCD (Fleischer & Zames, 2011). Along with meeting the first criterion, the Process Model also meets the second criterion by highlighting the important processes and actors. Each step in the Process Model is necessary for the following steps. Where the Process Model fails is the third standard for policymaking models. The Process Model does not offer explanations for a policy’s causes or consequences because it merely describes the steps and influencers that a policy must survive in order to become law. It offers nothing in regards to policy content, and it does not offer explanations for why a policy like Section 504 was selected. The Process Model does not offer insight into why Section 504 was passed under the Rehabilitation Act of 1973, as opposed to being passed prior to the Rehabilitation Act or after it. The Process Model also does not consider the possible consequences of Section 504. Since it focuses on the processes that led to the enactment of Section 504 alone without necessarily looking at a broader context, the Process Model cannot make predictions regarding how Section 504 might be impactful for future policies.

Incrementalism Incrementalism accurately describes the process behind the enactment of Section 504, as research does show that there was a long line of policy leading to Section 504 under the Rehabilitation Act of 1973. In 1916, The National Defense Act provided opportunity for wounded soldiers. The 1917 Smith-Hughes Act provided Fall 2021 • 81


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vocational rehabilitation for veterans with disabilities. In 1948, legislation prohibited U.S. Civil Service employers from discriminating against World War II veterans on the basis of physical handicaps. The 1954 Vocational Rehabilitation Amendments supplied funds for researching rehabilitation, remodeling of rehabilitation facilities, and increasing services for those with mental illness and disabilities (Disability Legislation History, n.d.). In alignment with incrementalism, research shows that decision makers only agreed to pass Section 504 after the groundwork had been laid through the passing of the Civil Rights Act of 1964. Section 504 was originally written in conjunction with amendments to the Civil Rights Act of 1964, though not passed as one. It is not clear why exactly it was not passed as an amendment to the Civil Rights Act. However, what is clear is that once the groundwork was established with policy that broadened the scope of individual civil rights, similar policy was able to pass in subsequent acts. Policy makers were able to see the potential willingness of decision makers to modify past policy, so they once again attempted to pass Section 504 as part of the Rehabilitation Act and succeeded. This is an accurate picture of what incrementalism suggests about the will of policy makers. Policy makers, like in the case of Section 504, were more likely to pass Section 504 as a modification of a past policy rather than a new policy. Incrementalism is able to make accurate predictions regarding the consequences of Section 504. It presumes a future progression of Section 504, through a line of amendments and new legislation expanding the protection of individual rights and the service offered towards those with disabilities. In this case, The Rehabilitation Act of 1973 was immediately followed with the 1974 Rehabilitation Act Amendments, the 1978 Rehabilitation Act Amendments, as well as Rehabilitation Act Amendments in 1984, 1986, 1992, and again in 2015 (“Disability Legislation History,” n.d.). These amendments, accompanied by the American Disability Act and the Education for All Handicapped Children Act, represent the gradual modification of disability rights policy following the enactment of Section 504, just as incrementalism predicts.

Conclusion Of the three models analyzed in this paper, incrementalism and John Kingdon’s Three Streams Model give the best insight into why Section 504 succeeded in the policymaking process and how it became the first to recognize the rights of individuals with disabilities to equal protection against discrimination. While the Process Model provides a chronological system that can be used to describe the policymaking process behind Section 504, it fails to provide explanations for the passage and implementation of Section 504. It does not consider its content, it does not factor its surrounding context, it does not reveal the reason behind its timing, and it does not offer insight into its future impact. 82 • Fall 2021


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The Three Streams Model provides insight into the timing behind Section 504, its future impact, and important actors who worked in conjunction to pass Section 504. The window presented by civil rights legislation, which banned employment discrimination and public segregation on the basis of religion, race, color, and gender, presented an opportunity for legislation which banned employment discrimination on the basis of disability. The Three Streams Model correctly predicts Section 504’s impact. It recognizes that the passage of Section 504 would open a new opportunity window, allowing the politics and policy streams to run alongside each other in an effort to pass amendments and legislation which expanded the protection of the rights of those with disabilities. The Three Streams Model highlights the presence of political will and entrepreneurship that was integral in the passing of Section 504. Incrementalism provides a compelling explanation for the timing of Section 504’s success and an accurate forecast of the rippling effect Section 504 has on future public policy. A long list of legislation broadening the opportunities presented to individuals with disabilities combined with the monumental Civil Rights Act of 1964 demonstrates that Section 504 was another modification that decision makers were able to agree upon in light of past legislation. The chain of legislation following Section 504, expanding and specifying the protection of the rights of individuals with disabilities, validate the model’s estimation on the policy impacts of Section 504. While incrementalism provides explanations for the causes and consequences of Section 504, it exhibits a weakness in analyzing Section 504’s implementation through regulations. Neither incrementalism nor the Process Model present an explanation for the process behind the regulations of Section 504. Research demonstrates that implementing regulations for Section 504 was its own battle even after the enactment of Section 504. The Process Model, though it covers the action and actors of policy implementation, offers no explanation for the lag in implementing regulations for Section 504. Incrementalism, though it can offer insight into why regulations are often increased, does not offer insight into the resistance that HEW secretaries demonstrated toward implementing Section 504 regulations. The Three Streams Model may be used to analyze the implementation of regulations as its own process with the presence of discrimination in the problem stream, the potential regulations in the policy stream, and the HEW secretaries in the political stream. Eventually, HEW Secretary Califano was forced into coupling the problem of discrimination with the solution of regulations. At that time, according to the Three Streams Model, an opportunity window presented itself. Taking into consideration the issue of Section 504’s regulations, the Three Streams Model provides the best insight and versatility when it comes to analyzing Section 504 as a whole.

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Reference List Disability legislation history: A brief history of legislation. (n.d.). Colorado State University, Student Disability Center. https://disabilitycenter.colostate.edu/ awareness/disability-history/ Dye, T. (2017). Understanding public policy (Fifteenth ed.). Boston: Pearson. Fleischer, D.Z & Zames, F. (2011). The disability rights movement: From charity to confrontation [eBook]. Temple University Press. John F. Kennedy and people with intellectual disabilities. (n.d.) John F. Kennedy Presidential Library and Museum. https://www.jfklibrary.org/learn/about-jfk/jfk-inhistory/john-f-kennedy-and-people-with-intellectual-disabilities Kingdon, J.W. (2011). Agendas, alternatives, and public policies. Boston: Longman. Landes, D. (2000). Kitty Cone: Political Organizer for Disability Rights, 1970s-1990, and Strategist for Section 504 Demonstrations, 1977. The Regents of the University of California. https://archive.org/details/ polorganizer00conerich/page/n5/mode/2up Pelka, F. (2012). What we have done: An oral history of the disability rights movement [eBook]. University of Massachusetts Press. https://web.a.ebscohost.com/ehost/detail/ detail?vid=4&sid=67e6007e-0fc2-4a43-a3c7-88db5155340c%40sdc-v-sess mgr02&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ%3d%3d#AN=1246443&db=n lebk The Rehabilitation Act of 1973, H.R. 8070, 93rd. (1973). https://www.govtrack. us/congress/bills/93/hr8070/text U.S. Department of Labor, Office of the Assistant Secretary for Administration & Management. (n.d.) Section 504, Rehabilitation Act of 1973. U.S. Department of Labor. https://www.dol.gov/agencies/oasam/centers-offices/civil-rightscenter/statutes/section-504-rehabilitation-act-of-1973 United States. President (1969-1974: Nixon). (1973, March 27). Message from the President of the United States returning without approval the Bill (s.7) Entitled the “Rehabilitation Act of 1972.” [U.S. Government Printing Office: Washington]. https://www. senate.gov/legislative/vetoes/messages/NixonR/S7-Sdoc-93-10.pdf

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United States. President (1969-1974: Nixon). (1972, October 27). The President’s Memorandum of Disapproval of Nine Bills Passed by the Congress. [The Office of the Federal Register, National Archives and Records Service, General Services Administration: Washington]. https://www.senate.gov/legislative/vetoes/ messages/NixonR/HR8395-8-WeeklyComp-1579.pdf

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ELDERLY EPIDEMIC: FINDING CULTURALLY SUITABLE SOLUTIONS FOR ELDERCARE James M. Hodson Abstract As the world population ages, determining the best possible means of caring for the elderly becomes ever more important. Any means, however, must accommodate cultural expectations and values to be effective. This project seeks to answer how cultural individualism influences the effectiveness of formal institution-based and informal family-based eldercare in a society. To answer this question, this study examines secondary data collected from the research literature, government organizations, and private organizations. This project found that cultural individualism, as present in America, proves a significant obstacle to effective informal care. Additionally, aversion to familial obligations also proves to be a significant obstacle to effective informal care even in collectivist societies like Japan. Nevertheless, informal care can prove successful in culturally suitable societies like Italy. As such, when implementing any policy concerning eldercare, policymakers must consider cultural suitability. ___________________________________

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Introduction The world’s population is aging. An increase in life expectancy, a decrease in fertility, and a rise in quality of life have progressively strained society (United Nations, 2017). This strain falls heaviest on the family, burdening younger generations and neglecting older generations (National Institute on Aging, National Institutes of Health, 2007). The same demographic changes inflating the elderly population also harm society’s ability to care for the elderly. Increased life expectancy and greater quality of life mean more non-producers consuming more resources. The decrease in fertility implies fewer future producers able to bear the cost of caring for the elderly. Often, families have only a couple of children to look after the elderly (Bookman & Kimbrel, 2011). In the Western tradition, the family existed as “the association established by nature for the supply of men’s everyday wants” (Aristotle, c.a. 350 B.C.E./1885, “Book One”). As society grew more complex, formal institutions arose to meet “men’s everyday wants,” including eldercare. Many researchers have addressed whether formal institutional-based or informal family-based eldercare more effectively supplies the physical, emotional, and social needs of the elderly. Both have clear advantages and disadvantages. It is important, however, to note in what type of culture eldercare occurs. Different cultures will have varied approaches to fulfilling the needs and wants of both the elderly and their caregivers. The research question of this project is how cultural individualism influences the effectiveness of formal and informal eldercare. Individualism is associated with nuclear family structures and an increased desire for independence. Unlike more collectivist cultures, individualist cultures lack strong internal beliefs and external social pressures to encourage reliance on the extended family. However, familial, informal eldercare still predominates even the most individualist societies (Bookman & Kimbrel, 2011). More individualist societies tend to develop external assistance or alternatives to informal care through government, market, or volunteer means. The exact avenue chosen will depend upon the country’s history and other characteristics. Few countries have developed fully government-operated systems for eldercare (Lyon & Glucksmann, 2008). The research hypothesis is that informal eldercare will benefit both individualist and collectivist cultures, but individualist cultures will require more external assistance to accommodate cultural values.

Literature Review In response to the impending aging crisis, several studies have examined the historical development of eldercare within different cultures and proposals for future development. The majority found that all cultures share a preference for informal Fall 2021 • 87


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care, especially individualist nations (Long & Harris, 2000; Lyon & Glucksmann 2008; Horn, Schweppe, Bender, & Hollstein, 2016). As Hussein and Ismail (2017) explain, in collectivist cultures, specifically Arab culture, “there is much social stigma attached to the idea of elderly relatives being placed in such nursing homes” (Hussein & Ismail, 2016). Nevertheless, studies show that even collectivist cultures are adopting formal care alternatives in response to demographic shifts (Long & Harris, 2000; Hussein & Ismail, 2017). Decreasing fertility and increasing life expectancy have diminished the number of children available to care for their elders and increased the number of elders needing care (Department of State, 2007). Remaining caregivers face increasing financial and emotional stress (Bass, 1987). Additionally, the “oldest old” population, those 85-years-old and over, is growing (Department of State, 2007). According to Long and Harris (2000), “it is this group that is most likely to suffer from chronic illnesses, and thus most likely to require assistance” (p. 23). Women, the traditional caretakers, are particularly overwhelmed (Zhan & Montgomery, 2003; Hussein & Ismail, 2017). Even in individualist cultures, women compose the majority of family caregivers and carry more stress than males (Bass, 1987; Bookman & Kimbrel, 2000). Increasing participation of women in the workforce decreases the number and capacity of women to serve in their traditional role as caregivers, and men are increasingly taking up the responsibility instead (Doty, 1986; Bookman & Kimbrel, 2000). Men, however, face more pressure from work obligations than women and are more likely to outsource care than women (Bookman & Kimbrel, 2000; Long & Harris, 2000). With increasing numbers of elderly and decreasing numbers of informal caregivers, families are beginning to turn increasingly to formal supplements or alternatives (Lyon & Glucksmann, 2008; Hussein & Ismail, 2017). As Lyon and Glucksman (2008) found, most Western countries derive the majority of care supplements and alternatives from the market; however, most countries also feature extensive government support of market options. A key factor in this expansion of the eldercare market is the use of immigrant labor (Department of State, 2007; Lyon & Glucksmann, 2008; Ibarra, 2002). Lyon and Glucksman (2008) state, “the UK is now one of the ‘largest importers of professional health care workers in the world’” (p. 112). Other countries are following this trend. In Italy, for example, many middle-class families hire immigrant caregivers to supplement informal care (Lyon & Glucksmann, 2008). Similarly, in the United States, many families hire recent immigrants as in-home caregivers (Ibarra, 2002). On the other hand, a growing eldercare industry in Thailand cares for imported German elders (Horn et. al., 2016). In addition to demographic influences, culture also affects how societies approach eldercare. Individualism and material prosperity promote formal care supplements and alternatives to informal care. Despite the almost universal preference for family-based care, it is strongest in more collectivist countries (Lyon 88 • Fall 2021


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& Glucksmann, 2008; Hussein & Ismail, 2017). Individualist cultures are unlikely to change, given that immigrants from collectivist cultures, when removed from their cultural context, will acclimate to individualist practices. According to Zhan and Montgomery (2003), external social pressure to provide eldercare diminishes due to increased formal alternatives, decreased family size, and increased individual mobility. Without external pressure, internalized norms like filial piety are “not likely to be a sufficient force to maintain traditional patterns of eldercare” (Zhan and Montgomery, 2003, p. 224). Instead, financial assistance replaces traditional caregiving (Long & Harris, 2000; Zhan & Montgomery, 2003). According to Bookman and Kimbrel (2000), middle-class and higher-income families tend to hire caregivers rather than provide care themselves. More mobile and affluent populations, in which women increasingly participate in the workforce, produce a greater need for formal supplements and alternatives (Bookman & Kimbrel, 2000; Long & Harris, 2000). Individualist preference accounts for much of this behavior. Both elders and their children desire to be independent (Pyke, 1999). Elders’ desires for independent housing and lives separate from their children have reduced cohabitation, increased financial assistance, increased social programs, and increased formal supplements and alternatives. Likewise, their children’s desires for independent lives and, sometimes, resentment of parental intrusion reinforces the growth of formal supplements and alternatives (Pyke, 1999; Bookman & Kimbrel, 2000).

Data Methods This study employs primarily qualitative methods supported by quantitative methods. Using secondary data from past studies, this study evaluates the effectiveness of traditional informal eldercare as opposed to formal eldercare alternatives or supplements in both individualist and collectivist societies. The analyzed studies were selected because they examine particular cultural manifestations of eldercare. The dependent variable of this study is the “effectiveness of eldercare,” which is defined as best meeting the needs of elders while minimally burdening the caregiver. The effectiveness of eldercare is operationalized into material effectiveness and emotional effectiveness. Material effectiveness refers to the capability of caregivers to provide elders with adequate levels of time and resources. Following Bookman and Kimbrel (2000), aspects of material effectiveness include the length of care, the geographic proximity of the caregivers to elders, the residential situation of caregivers and elders, the financial resources available for care, and the health of the elder. Emotional effectiveness refers to the consistency between the system of care and the desires of both caregivers and elders. Again following Bookman and Kimbrel (2000), aspects of emotional effectiveness include who decides the fulfillment of the caregivers’ and elders’ desires and the level of familial involvement. Effective eldercare Fall 2021 • 89


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will best meet the material and cultural needs of elders while least burdening the material and cultural needs of the caregiver. The independent variables of this study are “eldercare” and “culture.” Eldercare is defined as the provision of time and resources to elders. Informal care and formal care are respectively defined as non-institutional familial eldercare and as institutional non-familial eldercare. Formal care can include government-run, governmentsponsored, or wholly private programs. This study will not examine the differences in depth. Culture is defined as the shared values of a group of people. This study will examine a broad scope of national cultures using the six-dimensional model of national culture developed by Geert Hofstede (Hofstede Insights, 2021). Culture will be operationalized using three dimensions of the 6-D model: power distance (the acceptance of unequal distributions of power), individualism (the interdependence among society members), and indulgence (the extent to which desires are controlled) (Hofstede Insights, 2021).

Research The Problem Traditionally, most eldercare occurred informally within the home. Under this model, wives would care for their aging husbands and children would care for their aging parents. This is still the norm almost worldwide to different degrees. Traditional, informal eldercare often features multigenerational households or habitation within the same community. Informal care within the same household or community provides constant care, secure housing, and emotional support. Throughout the centuries, informal care met elders’ needs and societal expectations. Society, however, has not remained constant. A vastly more individualistic culture has sprung up in the West, bringing with it new societal expectations and individual needs. Does traditional informal care still meet those demands? Traditional cultures generally score high on the Hofstede Index for power distance, low for individualism, and low for indulgence. Traditional societies organize themselves by groups, whether that be clan, tribe, or village. These groups are hierarchical, with leaders and followers. Traditional hierarchies tend to be patriarchal, with deference to elders. The individual is subordinate to the group and owes loyalty to the group. In return, the group will take care of the individual. An individual’s identity is determined, in large part, by the group to which they belong. A strong preference for the good of the group, in turn, limits individual indulgence (Hofstede Insights, 2021). Individualistic cultures generally score low on the Hofstede Index for power distance, high for individualism, and high for indulgence. These societies organize themselves around the autonomous individual. The democratic principle of equality 90 • Fall 2021


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challenges any hierarchy or privilege. The individual jealously guards their autonomy against encroachment from other individuals, including their family. Society expects the individual to seek their own good and the good of those closely associated with them. Groups are only valid insofar that they meet the needs of the individual. Burdened with only voluntary obligations, the autonomous individual has more incentive for indulgence. The usual material prosperity of modern society furthers this incentive (Hofstede Insights, 2021). These radically different cultures have divergent societal needs and expectations of eldercare. While material needs remain constant across industrial countries, different cultures have vastly different ways of supplying those needs. Traditional societies rely upon informal care and familial structures to supply most eldercare organically. Providing care is the expectation. Families are more cohesive, larger, geographically concentrated, and a clear division of labor is made between providers and caregivers. The pooling of financial resources and the availability of multiple caregivers enables traditional families to care physically for elders with minimum material burden upon the individual. Individualistic societies lack strong familial care structures. Families are smaller, and members are less geographically concentrated. Actual care comes from outside the family while the family provides financial resources. This results in an increased financial burden upon individuals due to smaller family size and decreased obligations of providing care due to outsourcing. Thus, the individual is no longer geographically bound to the family. If outside care cannot be bought, however, the individual must carry both the financial and caregiving burdens. Individuals in individualistic society can escape the burdens of care if they have the resources, but they can quickly become overwhelmed by both financial and caregiving burdens if not. Material needs remain constant, but culture heavily affects emotional needs. In traditional, collectivist societies, the need to belong is most profound. The individual is directed towards the group and defined by it. Losing membership in the group is like losing oneself. Elders will feel most satisfied when their families care for them, and family members will feel most satisfied when they are part of a cohesive familial unit. In individualist societies, the need for independence reigns supreme. The individual is directed towards the self, and dependence or obligation is a loss of self. Elders will feel most satisfied when they do not depend on anyone but themselves, and family members will feel most satisfied when they do not care for anyone unwillingly (Pyke, 1999).

Case Studies As presented, an individualist culture is not as conducive to informal eldercare as traditional culture. Individualistic families lack the geographical proximity and number of members to provide adequate care, and the prioritization of independence Fall 2021 • 91


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opposes the requirements of informal care. In response, many formal eldercare supplements and alternatives have arisen in modern industrial countries. Three national case studies will be examined according to material and emotional criteria to determine the effectiveness of formal eldercare compared to instances of informal care. The culture of each country will be measured using three dimensions of the Hofstede Index. First, eldercare in the United States of America will be examined. The United States has high industrialization and an archetypically individualistic culture characterized by a low tolerance for power inequalities, high individualism, and high indulgence. Next, a more traditional European country, Italy, will be examined. Italy has moderate industrialization and a national culture characterized by moderate toleration for power inequalities, moderate individualism, and low indulgence. Finally, an Asian country, Japan, will be examined. Japan has high industrialization and a national culture characterized by moderate toleration for power inequalities, low individualism, and low indulgence (Hofstede Insights, 2021). The United States. It should come as no surprise that the United States places a premium on individualism and high indulgence while possessing a low tolerance for power inequality, given its democratic history and material prosperity (Hofstede Insights, 2021). Alexander de Tocqueville (2000) observed these same traits among Americans over 180 years ago. Low tolerance for power inequality and high individualism has dissolved the extended hierarchical family of traditional society in favor of the nuclear family and individual (Ruggles, 2007). Dependence is associated with constraint of the individual. High indulgence exacerbates the effects of equality and individual autonomy. Personal desires are placed above loyalty to the group. Instead, group membership is voluntary and valid only so far as it furthers personal ends. This idea is the basis of government, associations, and, increasingly, the nuclear family itself. Nevertheless, informal care exists ubiquitously throughout the United States. In 2015, 16% of Americans reported providing unpaid care to adults over fifty years of age. Reaching $470 billion in 2013, the value of unpaid care “exceeded the value of paid home care and total Medicare spending in the same year” (Family Caregiver Alliance, 2016). Informal caregivers provide services ranging from buying groceries to intensive nursing. These services can be short-term or long-term and can occur both in the home and in institutions. As Bookman and Kimbrel (2000) put it, “family caregivers are a ‘shadowy workforce’ in the geriatric health industry” (p. 119). Informal care places significant financial burdens on families. Many caregivers work, with six in ten reporting that caregiving has seriously impacted or changed their employment. Others quit working to provide more care due to the inability to hire paid help. The majority of informal caregivers are middle-aged and a sizable minority are elders themselves (National Alliance for Caregiving and AARP, 2015). 92 • Fall 2021


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With reduced incomes and others to worry about, planning for their own care often comes too late. Fifty-four percent of Americans report doing little or no planning for long-term care, and two-thirds lack confidence in their ability to afford care (Associated Press-NORC, 2015). Informal care also restricts families geographically. The physical nature of caregiving requires physical proximity. Three-quarters of caregivers live within twenty minutes of their recipients (National Alliance for Caregiving and AARP, 2015). Americans, however, are less likely to desire to relocate for better care. 77% of Americans wish to receive care in their own home and most prefer to receive care from their spouse, especially men and the wealthy. Women and the poor are more open to receiving care from their children. Only 4% of Americans desire to receive care in another’s home (Associated Press-NORC, 2015). In practice, half of the elders live in their own home, and 35% live in their caregiver’s home (National Alliance for Caregiving and AARP, 2015). Informal care can benefit families through intergenerational transfers. These transfers are not always one-sided, and older generations often offer “care, time, and money” to younger generations (Bookman & Kimbrel, 2000, p. 121). Instead of exhausting one generation, a level of equilibrium can be reached through reciprocity. The same system present in traditional societies can still be seen in modern societies. As Compton and Pollak (2013) note, however, “hands-on care” requires close geographic proximity (p. 5). Transfers of money are not so limited by space. In geographically distant families, money becomes the primary means of intergenerational transfer, and financial assistance becomes the extent of informal care. Wealthier families use less informal care and require less financial assistance for elders than poorer families. Elders from wealthier families are more likely to have the money to pay for in-home care or a retirement community. These elders can best employ formal alternatives to traditional informal care and enjoy the greatest independence from their children. Their children, usually college-educated, will live further away. Below the upper-middle class, families become more reliant on informal care from children and spouses (Bookman & Kimbrel, 2011). Elders, however, have no guarantee of a reliable informal care structure to provide care, time, or money. In 2011, 54% of senior households could not meet their expenses even after combining their net worth, Social Security benefits, and pension incomes. Already poor, adding the burden of caregiving to working-class families further reduces their income (Bookman & Kimbrel, 2011). The financial strain upon poorer elders places them under emotional stress as well. Apart from the strain of meeting everyday expenses, elders also face the prospect of not fulfilling desires for independence and success. Elders overwhelmingly desire to live in their own homes with their spouses (National Alliance for Caregiving and AARP, 2015). Failing to do so and depending upon outside help can be humiliating, Fall 2021 • 93


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especially when parents must rely on children. Pyke (1999) points out that “parental compliance and acquiescence appear to be necessary if relations are to be free of tension” (p. 665). Few American elders will sacrifice their independence and will often obstruct or even reject informal care (Pyke, 1999). Caregivers also face a great amount of stress. Middle-aged children, the so-called “sandwich generation,” must care for both their elders and their offspring (Bookman & Kimbrel, 2011, p. 119). The financial stress is enormous, especially if they must both work and provide care personally. Forty-nine percent of informal caregivers are put into a caregiving role unwillingly (National Alliance for Caregiving and AARP, 2015). Women especially find this difficult, considering that 67% of caregivers are female. More female caregivers report negative health than male caregivers and are more likely to have caregiving impact their ability to work (Bookman & Kimbrel, 2011). Finally, caregivers will often withdraw care and personal contact when elders refuse to concede control (Pyke, 1999). This leaves elders without support. In America, the material and emotional effectiveness of eldercare are intertwined. Emotional fulfillment is predicated on the ability to independently supply the care and finances necessary for old age. The American system works for those able to afford it: effective eldercare can be bought. Family can be distant, but that is necessary for independence. For those unable to afford care, however, the American system places them at a financial disadvantage and in emotional discontent. Elders, whether from a lack of existing structures or personal choices, may not have the care they need. Informal care can be mutually beneficial but is more often detrimental to both elders and caregivers. Both endure emotional stress, and caregivers are placed at a financial disadvantage. Despite this, informal caregivers play a fundamental role in the American system acting as a safety net and supplemental workforce (Bookman & Kimbrel, 2011). Italy. Compared to the United States, Italy retains a more traditional culture with a moderate tolerance for power inequality, moderate individualism, and low indulgence (Hofstede Insights, 2021). According to Luciano et al. (2012), “the family is still characterized by strong ties and intergenerational support” (The Family in Italy). Instead of independence, discourse about eldercare in Italy more often concerns itself with solitude (Lyon & Glucksmann, 2008). While Italy’s familial decline lags behind the rest of Europe, modern phenomena of lower marriage rates, lower birth rates, and higher divorce rates are steadily increasing (Luciano et. al., 2012). Nonetheless, the Italian family remains a cohesive unit able to provide informal care. Informal care dominates the eldercare market in Italy. The government and society have adopted a policy of explicit familialism. Nearly 11% of the population, predominantly female, provides unpaid care to elders (Lyon & Glucksmann, 2008). This form of eldercare relies on two requisites: the availability of a large labor pool 94 • Fall 2021


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and the continuance of familial proximity and reciprocity. Italian women have much lower rates of employment compared to the rest of Europe since they are expected to stay home to provide care. Additionally, the Italian practice of unmarried children living at home increases family income or potential caregivers. Italian families also remain in geographical proximity more than the rest of Europe (Luciano et. al., 2012). Despite efforts of traditionalists and the Catholic Church, the Italian family is changing. Italian marriage and birth rates are rapidly decreasing and separation rates are increasing. Italian women are also beginning to join the workforce in greater numbers (Luciano et. al., 2012). This may result in a situation similar to the United States, where caregivers are also financial providers. An informal market exists to remedy this shortage of caregivers with immigrant labor. The low cost of migrant caregivers allows even lower-middle-class families to employ one. A formal market selling eldercare services also exists, although undeveloped (Lyon & Glucksmann, 2008). Italian families, thanks to their cohesiveness and proximity, can provide both money and care to their elders. Most elders live at home, either with or near their families. Formal institutions remain popular for medical care, but “they are perceived as a last resort for social care, and are also very expensive” (Lyon & Glucksmann, 2008, p. 105). Family members are the accepted caregivers in Italian culture, both in the home and in institutions. Cheap immigrant caregivers supply any shortage. Finances come from within the family, either the elders or their caregivers. The government also supplies finances through pensions and welfare, indirectly supporting the employment of migrant workers by poorer families. Finally, Catholic charities supply limited finances and care (Lyon & Glucksmann, 2008). Italian caregivers suffer less stress than American caregivers. Unlike in the United States, informal care is expected. Additionally, few caregivers also have to work. Although family size is declining, informal migrant labor compensates for the decreasing availability of caregivers (Lyon & Glucksmann, 2008). The combination of expectations of informal care and a more collectivist attitude means that elders more often defer to their children and that children more willingly take care of their parents (Pyke, 1999). The cohesive family structure places less stress on Italian caregivers and elders. The greatest danger, both physically and emotionally, that Italian elders face is lacking family. Without family, elders are unlikely to receive care or sufficient finances. They will also be alone. Solitude, not dependence, is feared (Lyon & Glucksmann, 2008). In Italy, the cohesive family structure is just as important in life as personal independence is in America. The loss of something so valuable and pervasive would be emotionally devastating. Although the need for family is usually met, a declining birth rate means less available support. Many will be without informal care or emotional fulfillment, particularly unmarried women (United Nations, 2017). Fall 2021 • 95


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Like in America, the material and emotional effects of Italian eldercare are intertwined, but it is dependent on existing family structures rather than money. Italian society expects that the family will care for its elders both physically and financially. The geographic proximity and cohesive structure of the family enable this care. Without a family, elders face a future of want and neglect. Additionally, they face solitude, lack of belonging, and deep depression. The Italian system has worked so far, but the family remains its weak link. The contemporary decline of the family may put Italian elders in jeopardy. The system of informal care continues despite family deterioration thanks to immigrant labor, although it is unclear how long this will last. Japan. Japan has a similar tolerance for power inequality as Italy with significantly lower individualism and slightly higher indulgence (Hofstede Insights, 2021). Japan is unique thanks to its blending of Western influence and traditional Eastern culture. Like other Asian cultures, Japanese society is hierarchical and the individual is subordinate to the group. Traditional extended families still function, and significant pressure is placed upon the individual to do well and provide for the group. Harmony is the presiding value of Japanese society (Cultural Atlas, 2021). The Japanese family, however, is deteriorating. Japan’s marriage rate is decreasing, and its divorce rate is increasing (Nippon, 2020). More pressingly, Japan’s birth rate is plummeting (The World Bank, 2019). Japan’s traditional filial piety is under enormous stress from an elderly epidemic. In Japan, informal care remains the accepted method. Even amidst industrialization, demographic change, and an aging population, old Confucian values have refused to die out. Nevertheless, they are waning. Due to increased urbanization, social welfare, and familial decline, younger Japanese citizens increasingly see obligations of filial piety as “unavoidable” rather than a “natural duty.” The expectations of children giving informal care to older Japanese have likewise decreased. (Ogawa & Rethorford, 1993). With the transition of so many women to the workforce, fewer caregivers are available. More men are assuming the role of caregiving, and both men and women usually work and provide care simultaneously (Long & Harris, 2000). This shift in values alongside industrialized conditions causes significant stress among family caregivers: working a job while providing care places more stress on the individual. Exacerbating their stress, caregivers often provide care solitarily with minimal help from siblings or a spouse. Women who remain the primary caregivers feel increasingly bound by social convention and unhappy in their traditional roles, while men forced into caregiving often feel shamed by feminine behavior (Long & Harris, 2000). Japanese families, whether unable or unwilling to provide care, look to formal alternatives from the government or the market. In the 1970s, families placed elders in hospitals as permanent residents (Hayashi, 2011). In response, the government 96 • Fall 2021


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introduced home care support centers, daycare centers, and long-term facilities. Unable to support the cost, however, the government limited the program and supported informal care (Yamamoto & Wallhagen, 1997). Since then, market options have appeared (Hayashi, 2011). The Japanese prefer to pay for eldercare rather than perform it. Over half of the population supports higher taxes for greater welfare support of elders (Ogawa & Rethorford, 1993). For caregivers, traditional informal care proves more burdensome than higher taxes or costly professionals. For Japanese elders, neither informal nor formal care provides their material and emotional needs. Under informal care, elders frequently face neglect or abuse. Changing perceptions among younger generations often lead to intergenerational strife. Older Japanese expect filial care and cohesive families, but younger Japanese dislike filial care and often delegate the role to one individual. Sometimes, children in close proximity purposefully distance themselves from their parents (Long & Harris, 2000). Under formal care, elders lack any semblance of a traditional family and its relational bonds. Instead, they are effectively abandoned and left isolated. High suicide rates result from a combination of isolation and guilt (Hayashi, 2011). Japan’s system of eldercare is in the middle of transition from family-centric to finance-centric. The older generation values family cohesion, but the younger generation substitutes buying power. Due to demographic and value changes, informal care places an enormous burden upon the younger generation. They have instead turned to formal alternatives. Elders have improved materially in care since the rise of formal care; however, they face emotional neglect from both informal and formal care. Informal care remains predominant in rural areas, where norms of filial obligation are more widespread. Japan remains one of the highest rates of multigenerational coresidence in the world (Ogawa & Retherford, 1993). Nationally, however, the traditional family is fragmenting and the population is rapidly aging. The Japanese look to the state and the yen to fix the problem.

Conclusion In the United States, Italy, and Japan, formal alternatives have not been able to fully replace informal care. Substantial gaps in eldercare coverage remain, especially in the United States and Japan. In all three countries, the family remains the foundation of eldercare, providing money and care both at home and in institutions. Italy alone fully recognizes the importance of the family and remains the most traditionally oriented. Its system of informal familial care supplemented by informal migrant labor and government pensions provides both the most material coverage and emotional satisfaction. The United States and Japan, on the other hand, have largely lost any traditional familial care structure. Social programs and formal market alternatives have been introduced, but neither provides sufficient material coverage (Bookman & Kimbrel, 2011; Long & Harris, 2000; Hayashi, 2011). Fall 2021 • 97


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An importation of Italy’s system of informal eldercare is not possible. Both the United States and Japanese governments acknowledge the utility of informal care and the prohibitive expense of social services, but the populace lacks the necessary culture for such a system to work (Wellman, 2010; Yamamoto & Wallhagen, 1997). Both Americans and younger Japanese dislike familial obligations of service. American elders dislike depending on their children, and both Americans and young Japanese dislike the burden of eldercare. Finally, neither American nor Japanese families can provide adequate care while also earning money. Modern industrial conditions have fragmented the family, decreasing its size, cohesiveness, and geographic proximity (Ogawa & Rethorford, 1993). It is emotionally less burdensome and, in many cases, less financially burdensome to outsource eldercare. Italy has maintained its system of informal eldercare despite modern conditions. Only a mix of provincialism and Catholic teaching has curbed the family’s decline. Italy’s separation rate is increasing while its marriage and birth rates are decreasing. Italy’s population is aging. There are more people to take care of and fewer people to take care of them (Luciano et. al., 2012). Whereas, the United States and Japan look toward government programs and market alternatives, Italy looks toward informal arrangements with immigrant caregivers (Lyon & Glucksmann, 2008). This has kept care within the family and the cost of care down. Italy only pursued this system and this system only works because the populace still wants a family-based system of eldercare. Americans and younger Japanese do not want familial eldercare. Considering Italy’s future demographic changes, it remains to be seen whether Italy will continue to pursue its policy of explicit familialism. The data did not fully confirm the research hypothesis that informal eldercare will best benefit both individualist and collectivist cultures, but individualist cultures will require more external assistance to accommodate cultural values. Informal eldercare leaves much to be desired in both America, an individualist country, and Japan, a collectivist country. This could be because Japan’s younger generation is more individualist, but their collectivism could also have shifted from the family to another group. Also, Italy, where informal eldercare works well, lies between America and Japan when it comes to individualism. Informal care appears to lie too far from the cultural values of Americans and young Japanese. In America, eldercare within the home will best benefit society. Either formal home care from professional caregivers or informal care from spouses would satisfy desires for independence. This is largely the system in use, but it has one large flaw: it must be financed. Otherwise, elders will lack care and the material necessities of life. Informal transfers of money and care from children partially compensate, but the poor can easily become trapped between caregiving and work. Government programs or private charities could help, but aid would have to more than double to meet every need (Family Caregiver Alliance, 2016). As long as poverty exists, informal caregiving will remain the backbone of the American eldercare system despite its disadvantages. 98 • Fall 2021


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In Japan, eldercare communities will best benefit society. Elders desperately want to belong to a family. Younger Japanese, however, are more willing to pay for eldercare than to actually provide it. The problem of absent family members is so bad that a rental family industry exists offering replacement relatives (Watanabe, 1992). Informal care in Japan opens elders up to both material and emotional wants because of the apathy of younger Japanese. Social hospitalization provides for material needs but leaves elders feeling abandoned and isolated. New government programs or market alternatives could help to provide adequate care while emotionally gratifying elders and satisfying younger Japanese. In Italy, informal care will continue to best benefit society. For now, the system provides adequate material and emotional well-being for much of the populace. Italy’s changing demographics, however, may bring about cultural consequences similar to America and Japan. Italy’s reliance on migrant labor, while preserving the system now, may fuel future demographic change. Italy may well look like today’s Japan: the older population looking for family cohesion, and the younger population looking for release from familial burdens. Countries without strong family structures, whether individualist or collectivist, require more external assistance for eldercare. Without strong families, individuals lack an organic support system and resource pool. Isolated caregivers working parttime and elders without family need external assistance to alleviate material want and emotional stress. Either government programs or charitable organizations could provide external assistance. Direct aid to elders, however, often reduces a family’s willingness to provide care or financial aid. As families decrease in size and cohesion, more external help will be necessary, but as more external help is given, families will continue to fragment. In conclusion, systems of eldercare must accommodate cultural desires, formal care requires external aid, and informal care will remain the basis of any system of eldercare. A populace will not implement any system of eldercare inconsistent with their values. The decline of the family leaves the poor especially vulnerable and necessitates external aid. Informal care will always exist, although it may manifest differently. Formal care and government programs cannot cover all aspects of eldercare: governments and individuals lack the necessary finances. Possible directions for future research could be the effect of welfare and pensions on family cohesion or the effectiveness of such programs. These studies could shed light on how to balance cultural needs and familial cohesion.

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ABOUT GEORGE WYTHE

George Wythe was one of the premier scholars in early American history. The first law professor in America, he was a strong supporter of the War for Independence and a zealous patriot. Many of America’s most influential leaders, such as Thomas Jefferson, studied under his guidance. Furthermore, as a framer of the Constitution, Wythe left a legacy that the United States still honors to this day. The George Wythe Review adopted his name in memory of his brilliant scholarship and in hopes that this journal might emulate Wythe’s dedication to our country.

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