80th Legislature: Private Prisons in Mexico

Scott at Grits for Breakfast has an excellent article on SB 185 which would allow the Texas Department of Criminal Justice to put those convicted in Texas (specifically Mexican nationals) in privately run prisons in Mexico.

Scott, however, notes that the state constitutions and a couple of federal treaties prohibit this:

The Senate Criminal Justice Committee studied the idea in its recent interim report (pdf) after Estes proposed it in 2005. According to their analysis, “language in the Texas Constitution can be interpreted as prohibiting the State from transporting inmates out of Texas to any other country for a crime committed in Texas.” If I were writing that sentence, I’d have said it HAS been interpreted that way, since the day it was written.

Indeed, I’m not sure how anyone could claim that part of the Constitution is open to ANY other interpretation besides one that forbids Estes’ bill. The specific language states, “No person shall be transported out of the State for any offense committed within the same.” That seems pretty darn clear. A 1985 amendment allowed tranfers of prisoners to other US states, but not out of the country.

So at a minimum the idea would require a constitutional amendment and a statewide vote. But even then Texas couldn’t do what he proposes. Said the committee report,

The Inter-American Convention on Serving Criminal Sentences Abroad and the United States -Mexico Treaty on the Execution of Penal Sentences both state that once a prisoner is transferred to a receiving country, that country assumes all responsibilities for care of the prisoner. So long as these treaties are in effect, the State is obligated to follow them and conditions of them. Without further changes to these federal treaties, the Committee cannot recommend the state of Texas establish or contract with a private prison facility in the country of Mexico.

The Committee noted that because of the “supremacy clause” in the US Constitution, these US treaties supersede any statute on the subject Texas might pass. Clearly the bill isn’t making it through the Criminal Justice Committee in 2007 – not unless the United States plans to renegotiate these treaties anytime soon. All of this came to light years ago, btw, when then-Sen. John Leedom proposed the same thing during Texas’ 74th Legislature, and nothing’s changed.

Given this legal and political reality, it’s hard not to view Estes’ proposal as pure grandstanding, wrapping together two categories of folks for whom many people have little sympathy – prisoners and immigrants – and touting an idea in the media that can’t happen and basically wastes everyone’s time. Hell, just having to make these arguments in a blog post feels like somebody took a half hour from me that I’ll never get back.

I simply don’t see SB 185 coming to pass, for these and a myriad of other reasons including how difficult it would be to monitor the conditions (not to mention the potential civil rights violations) in foreign prisons.

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