File: Private.Israel.02.26.13
Malcolm M. Feeley
JPS Program
Boalt Hall School of Law
University of California
Berkeley CA 94720
mfeeley@law.berkeley.edu
PRELIMINARY DRAFT
The Theory and Practice of Private Prisons and Related Institutions *
*This is a very rough draft of a chapter in my book-in-progress on prison privatization. In
the book, my main emphasis is on the entrepreneurial features and consequences of
privatization of corrections in the Anglo-American-Australian world since the eighteenth
century. In it I show how privatization has unleashed creativity that has led entrepreneurs
to innovate and develop new and expanded forms of punishment. My instinct is to be
concerned about such unplanned expansion of criminal sanctions, and for this reason I
tend to be skeptical of privatization. But my experience in Australia from July – December
2012, led me to think more seriously about the normative aspects of privatization and to
consider theories that oppose it. This additional chapter to the book is the result.
Please keep in mind that this is a rough and preliminary draft. I welcome comments
(mfeeley@law.berkeley.edu), but ask that you do not cite or quote from this version. A
more satisfactory version will be forthcoming in due course.
mmf
Introduction
In chapter one, I raised and then passed over two important questions about privatization. One is
practical - whether private prisons are more or less efficient and effective than prisons managed
by the state. The other is normative - whether the administration of punishment is such a
quintessential state function that it should not be delegated to third parties. Until now my focus
has been on a third and I think more important issue--are private contractors entrepreneurs who
generate new forms of punishment, stimulate new demands, and supply new products in such
ways as to expand the net amount of punishment. In this chapter I want to return to the normative
and examine it in light of the empirical materials I have dealt with in different context in the
preceding chapters. The discussion should shed new light on the normative issue about
contracting out. My aim is to complicate and thus enrich the debate. Philosophers claim that
their theories formalize and thus clarify our pre-theoretical intuitions. Here I want to undertake a
sort of reverse engineering by considering the theoretical arguments in order to see how well the
fit with our conventional understandings.
The discussion proceeds as follows. First, I will review some of the most systematic and
compelling normative arguments against privatization. Second, I will compare the contemporary
privatization experiences of the United States and Australia. Third, I will examine features of
juvenile institutions only briefly touched on in earlier chapters. Finally I will contrast the
theoretical formulations with conventional understandings of prison privatization. This exercise,
I believe, raises serious questions about the power and persuasiveness of the theories. Indeed, if
there are powerful arguments to be made against contracting prison administration, they are not
to be found in the best available theories to date.
Theories of Privatization
There is a wide variety of positions on privatization of the criminal law and corrections, and any
number of theories defending and criticizing them. Abolitionists of prisons and the criminal law,
such as Nils Christie, complain about the “theft of conflict,” and maintain that criminal law
which considers crimes as offences against the state, deprives those involved of their right to
manage their own conflicts. Clearly, he advocates a type of privatization—in effect turning
crime back into torts from whence it came, and encouraging victims to confront their alleged
assailant for a of their own choosing. Similarly, John Braithwaite and other advocates of
“restorative justice” have developed coherent theories of collective responses the community,
including victims and their families and the families and friends of the accused to develop and
impose collective shaming and reintegration practices (Braithwaite; Braithwaite and Petit). And
of course there is a long tradition of regarding at least some criminal offenders as people in need
of treatment, who should not be sent to prison but to treatment programs that might or might not
be administered by the state (Menninger, Nolan).
As important and intriguing as these issues are, this discussion side-steps them. My
interest is in conventional correctional practices and alternatives managed by private contractors
or third parties. By corrections, I mean conventional forms of institutionalized sanctions,
including standard forms of imprisonment, probation, and other well-known forms of limited
custody. That is I restrict my discussion to well-known conventional forms of custody and
controlled supervision that are routinely established and administered by government agencies,
and increasingly in recent years by contracted service providers. The question is, should
government delegate such functions to private contractors and other third parties?
So far as I know there are no strong normative theories that favor prison privatization...
There are plenty of proponents, but most offer ad hoc utilitarian arguments in support of
privatization, though at times they develop rather elaborate micro-economic models in defense of
their positions. In contrast, there is a small but vigorous literature anchored in political and legal
theory argues against the morality of core corrections functions. It is to these I now turn.
Theoretical Arguments against Privatization
Two of the most systematic examinations of the normative implications of prison
privatization have been developed in Israel, which in the early 2000s was on the verse of
establishing that country’s first private prison. This issue was eventually resolved by the Israeli
High Court of Justice (HJC) in a holding that private prisons violated both the state’s duty not to
delegate to others a core state function, and that the offender’s dignity was violated by imposing
unnecessary additional restrictions of liberty beyond which are mandated by the criminal law.
Handed down in 2009, the Court’s arguments haves emboldened opponents of privatization
around the world to reflect on privatization (Harding 2011). A second and closely related theory
against privatization has been advanced by Hebrew University legal theorist, Alon Harel, who no
doubt was influenced by the debate in Israeli legal circles. I have selected these to statements
because in my view they represent the most fully developed and sustained theoretical cases
against prison privatization.
In Academic Center of Law and Business v. Minister of Justice (HCJ 2005/05), the HJC
rejected the state’s plans to contract for a private prison. In a long and careful opinion, Court
President Dorit Beinisch raises and rejects various arguments in favor of prison privatization,
and in a tour d’force analysis which draws on classical liberal political theory, develops an
argument that the state and only the state should have responsibility for administering
punishment.
The central tenant of the Court’s opinion is that the imposition of punishment as
well as the management—the day to day—operations of prions is a core state function that
cannot be delegated to others. To allow private management of prisons, the Court insists, inflicts
“an additional constitutional right to personal liberty beyond the violation that arises from
imprisonment itself” (73). The opinion then continues, “It can therefore be said that our position
is that the scope of this violation of a prison inmate’s constitutional right to personal liberty,
when the entity responsible for this imprisonment is a private corporation motivated by
economic considerations of profit and loss, is inherently greater than the violation of the same
right on an inmate when the entity responsible for his imprisonment is a government authority
that is not motivated by those considerations, even if the term of imprisonment that the two
inmates serve is identical and even if he violation of the human rights that actually takes place
behind the walls of each of the two prisons where they serve their sentences is identical” (73).
Thus the Court’s holding: the statute authorizing the establishment of a private prison
contravened the liberty component of the liberty component of the Basic Law: Human Dignity
and Liberty. It similar reasoning it held that a private prison would violate the Basic Law’s
dignity component as well.
The Court’s reasoning was sweeping and categorical.
Prison administration is a core
state function and core state functions cannot be delegated without undermining the sovereignty
of the state and the liberty and dignity of prison inmates. Drawing on political theorists as
different as Thomas Hobbes and John Locke, the Court constructs an elaborate set of twin
arguments both leading to the same conclusion. To delegate core state functions to private
contractors undermines the sovereignty —the integrity and legitimacy—of the state in a central
way. And at the same time it violates the liberty and dignity of the prison inmate. Echoing the
absolutism of Emmanuel Kant, the Court insists that even if it were found that private prison
administration was kinder and gentler than public prison administration, such delegation would
still violate inmates’ dignity and liberty, as well as the state’s sovereignty. The principles
involves are not to be confounded by inconvenient facts.
There is another less obvious but nevertheless crucial feature of the Court’s opinion. In
its discussion of its theory of non-delegable core state functions, the Court repeatedly
characterizes the contractual entity as “a private corporation motivated by economic
considerations of profit and loss”(73). But the argument is more expansive. While a private forprofit corporation may be particularly offensive agent, the essence of the argument rests upon the
nature of responsibilities of the state as well as its agent. Again and again, the opinion
emphasizes that it is the state and only the state which has the power to impose and administer
punishments. . Neither function can be delegated to any other institution. Justice Banish writes,
“one of the main factors that led to the organization of human beings in society, where by
invasive powers—including the power to send convicted offenders to prison—were given to the
authorities of that society and especially to the law enforcement authorities…(7?). This view is
buttressed by the views of Thomas Hobbes, who is quoted approvingly to the effect, that
“Publique Ministers are also all those that have Authority from the Sovereign, to….apprehend,
and imprison Malefators…” That is it is the state’s function to administer punishments.” (61)
It is also supported by the views of John Locke, who asserted that, “manner in which
modern political philosophy regards the role of the ‘political society’ in enforcing the law and
punishing offenders,…..[b]ut because no political society can be, nor subsist, without having in
itself the power to preserve the property, and in order thereunto, punish the offenses of all those
of that society”(61). Substituting “Community” for Hobbes’ “Sovereign,” he continues,
asserting that “men having authority from the community [by which he seems to mean public
officials], decides all the differences that may happen between any members of that society
concerning any matter o right; and punishes those offenses which any member hath committed
against the society”(62).
Summing up the lessons of Hobbes and Locke, the Court states its position directly:
“Although, naturally, many changes and developments have occurred since the seventeenth
century in the way in which the nature and functions of the state are regarded, it would appear
that the basic political principle that the state, through the various bodies acting in it, is
responsible for public security and the enforcement of the criminal law has remained unchanged
throughout all those years, and in a part of the social contract on which the modern democratic
state is also based.” ( ). The Court draws on an observation by Justice Zamir to illustrate its
point: “The proper relationship between the administration and the public…is a reciprocal
relationship of give and take”(quote on p. 63). It also quotes the view of American political
scientist, John DiIulio approvingly: “…the formulation and administration of criminal laws by
recognized public authorities is one of the liberal state’s most central and historic functions;
indeed, in some formulations, it is the liberal state’s reason for being” (63).
Drawing on all these and still more authorities, the Court concludes that the state has a
monopoly—through the executive branch and the bodies acting through it—with respect to the
use of organized force including the administration of imprisonment (65). This is necessary for
two reasons: 1) “Were this force not exercised by the competent organs of the state, in
accordance with the powers given to them and in order to further the general public interest
rather than a private interest, this use of force would not have democratic legitimacy…” (65); 2)
“the fact that the organized force is exercised by a body that acts through the state and is subject
to the slaw and norms that apply to anyone who acts through the organs of the state and also to
the civil service ethos in a broad sense of this term is capable of significantly reducing the danger
that the considerable power given to those bodies will be abused…” (65).
In sum, the state through its instrumentalities and no other institution has exclusive moral
authority both to sanction and to administer its criminal laws. To maintain its integrity, it must
perform its own difficult chores. Or as John DiIulio, again quoted with approval, insists, “…to
continue to be legitimate and morally significant, the authority to govern those behind bars, to
deprive citizens of their liberty, to coerce (and even kill) them, must remain in the hands of
government authorities….The administration of prisons and jails involves the legally sanctioned
coercion of some citizens by others. This coercion is exercised in the name of the offended
public (66).
Peruse the language in the last few paragraphs. The discussion begins by focusing on the
indignity of punishments inflicted by corporations concerned with profit and loss, and the
additional loss of liberty this entails. But then it shifts to a concern is with the integrity of the
state. The state fails in one of its essential duties if it does not, through its own instrumentalities,
perform its own core functions. The Court’s indignation may have been sparked by the idea of
prisons being administered by for-profit corporations, but its decision is anchored in the belief
that the state and only the state has the authority to inflict punishments on its citizens. This is an
aspect of the reciprocal relationship described by Justice Zamir.
In his article, “Why Only the State may Inflict Criminal Sanctions, “Alon Harel
emphasizes this aspect of the privatization controversy. Furthermore he acknowledges that what
holds for strictures on imprisonment applies equally to other forms of criminal-law sanctioning,
such as probation. But his central conclusion is, I think, identical or nearly identical with the
Court’s. The state cannot delegate its core functions to non-state actors. The virtue of his
argument is that it is not cluttered up with unnecessary discussion of the evils of prisons run by
for-profit institutions. In his focus on state-based administration, Harel constructs and considers
several possible forms of publically administered criminal sanctions, finding flaws in all of them
save one, which he terms “integrationist state-inflicted sanctions.” For purposes of argument
here, it is unnecessary to review of the types of sanction systems he rejects, but it is useful to
understand the nature of that system he does approve of. Reasoning by analogy, he argues that
parents are in a distinct and unique position with respect to punishing their children. Such
punishment is inextricably found up to the symbiotic relations within the family—the bond that
makes a family a family. It has no substitute. Similarly, he argues that a citizen’s relationship to
the state, at least with respect to punishment is similarly situated. No other individual or
institution can substitute for the state without breaking the bond between citizen and state. The
essence of his argument is contained in the following quote:
“To conclude, the integrationist argument maintains that the power to issue prohibitions
and the powers to make determinations concerning the severity of the sanctions and to inflict
them are inextricably interrelated….By privatizing the infliction of the sanction, the state
effectively not merely transfers the ‘technical’ power to execute the sanction; instead, it strips
itself of the power to make binding determinations concerning the wrongfulness of the act and
the appropriateness of the sanction…By delegating this power to private individuals, the stat in
effect severs the link between the prohibitions it issues and the suffering inflicted on the
offender” (Alon 130).
In sum, both the theory of the High Court of Justice and Alton’s theory claim in sweeping
and categorical terms that the state and only the state may administer criminal punishments.
They may not be delegated to third parties.
In light of this, the next sections of this chapter engage in a type of reverse engineering.
We now have the theory. Now I want to review it in light of actual practices. Instead of drawing
on our pre-theoretical intuitions to develop a theory, I want to deconstruct the theory in light of
intuitions and practices on the ground to see if they correspond. I do not propose to offer a
counter theory; I am not a political theorist. Rather I want to consider some readily available
“facts” and reflect on them in light of the theory. I believe the fit between theory and fact, and
thus ideas and intuitions is far from tight. Indeed, they are poles apart. If I am correct, the
upshot is that we must theorize anew about prison privatization.
Let’s begin with the lawyer’s history that informs the Israeli court’s opinion. It asserts
that an essential feature of the (liberal) state is and has always been (and should always be) that it
and no one else should exercise the power to administer criminal punishment. As history, this is
pure nonsense. Sources revealing the contrary are so numerous and so convincing that one does
not know where to begin to point to challenges. So to the extent that our intuition rests upon a
historical understanding of the criminal process, our intuitions are wrong. What is particularly
important in all this is that many of these alternatives have been embraced and accepted as
unproblematic by government officials (who often created them), citizens, and those on the
receiving end.
A second concern [not adequately developed here]: In the theories of why only the state
may inflict criminal sanctions, the state is essentialized in ways that would be approved of by
Thomas Hobbes’ and John Austin’s sovereign, but not likely by many contemporary political
theories of the modern administrative state. Much contemporary political theory, both practical
and abstract, has a more complex and nuanced understanding of complex modern institutions,
including the state. Conceptions of the state vary widely and there is no common understanding,
but various theories of the government appreciate that it is constructed of bundles of
responsibilities and forms of control. The public private distinction is fraught with difficulties;
private and quasi-public and quasi-private authorities are established to perform all sorts of
functions. State functions are delegated to private institutions in all sorts of ways. “Acting under
the color of law” entails a host of different actions in different situations. In short, in modern
political theory, “the” state has been disaggregated, and while there may not be in consensus as
to how the concept should be reformulated, this does not refute the fact that it has been
disaggregated (Rubin).
For any complete analysis of the issues, one must elaborate on the two issues raised
above—history, and essentializing the concept of the state—but my concern is with corrections,
and so I will turn to it. First, I will show that the nature of for-profit prisons that the arguments
under review here conjure up is a caricature, a not altogether unfair portrait, but a caricature
nevertheless. I will do this by pointing to a number of private prisons that do not fall neatly
within it, and I will point to state sanctioned programs that are anchored in different sets of
intuitions. Second, and most important, I want to challenge in a fundamental way the state
monopoly argument that at base is the anchor of both the Court’s opinion and Harel’s theory. I
want to show quite simply that it does not hold water.
Privatization of Prisons in Australia and the United States
The contemporary movement for privatization in corrections was initiated in the United States
where, in terms of numbers, it has had its greatest impact. Many more adult offenders are
detained in private custodial facilities in the United States than in any other country in the world.
Yet, only a tiny proportion--one or two percent of all adult offenders at most--are held in private
prisons in the United States. The state with the highest proportion of privately detained inmates,
houses only about five percent of all inmates. Figures for jails in the United States vary widely.
There are thousands of county jails in the United States and several dozens if not hundreds of
them are private. In some (usually smaller) counties virtually one hundred percent of those held
for trial or serving short sentences are held in private facilities.
In terms of proportions of inmates in private facilities, Australia leads the world by far.
As of this writing, around twenty percent of all offenders in Australia are held in private
facilities. Since the late 1980s, the state of Victoria has had a vigorous policy of privatization and
since at least the turn of the 21st century between forty and fifty percent of its adult offenders
have been held in private facilities. New South Wales is second with between twenty and twenty
five percent of adult offenders held in private prisons since 1990. Queensland, South Australia,
and Western Australia adopted private prisons later than these two states, their figures on private
facilities are lower but expected to grow in the 2010s, markedly so in Queensland.
Without doubt, the emergence of prison privatizations is linked to the rise of
neoliberalism around the world, and in particular Thatcher’s England, Reagan’s United States,
and the Conservative turn in Australia. With the rise of neoliberal governments, advocates of
prison privatization had receptive audiences and made significant inroads. Tellingly, the
privatization movement did not disappear when liberal governments regained control of
governments in the US, Australia, and UK. For the most part, prisons that were privatized under
conservative governments have remained privatized, and although, the clamor for privatization
of prisons and other public services may have declined and its rhetoric has been dampened, the
move to privatize continues. The reason for this is that privatization is driven by a number of
factors other than neoliberal ideological preferences.
In a survey of worldwide developments in prison privatization, Australian law professor
and corrections expert, Richard Harding (2001) identified six factors that have fueled the
attraction and then growth of privative prisons around the world, and especially in the United
States and Australia. They are:
-exponential increases in incarcerated populations,
-overcrowding and [in the United States] federal court intervention,
-legal and political inhibitions upon capital expenditure by governments,
-concern about recurrent costs,
-growing impatience with the perceived obstructionism of organized labor, and
-some concern with regime improvement (Harding C&J, 296)
A version of this list, less the last item, is echoed by just about everyone else who has examined
the rise of private prisons in the United States, Australia, the UK, and Europe.
Prison Privatization in the United States
In the United States the contemporary move to privatize adult facilities was certainly
driven in large part by the dramatic growth in prison populations, and the rising costs—both
absolutely and per inmate--of this mushrooming group. Australia experienced versions of the
same phenomena, but the rate of increase in the prison population was far lower, per inmate costs
are lower, prisons are less violent (and hence less costly), correctional leadership is more
professionalized, and policy-making has not been driven by a sense of panic. In contrast in the
United States, problems are most acute in states with the fastest growing prison populations, the
worst histories of prison abuse, the smallest tax bases, and the most backward public services. In
many of these states, the entire prison systems have been in receivership because of the
catastrophic failings, failing which have been compounded by near exponential growth rates
(Feeley and Rubin 1998). In these states, pressures to get on top of the prison crises were
overwhelming, and privatization seemed to promise salvation.
Although corrections officials often greeted court orders to improve conditions and
reduce populations with not so secret glee—court orders led to significant budget increases that
otherwise would not have been forthcoming--legislative leaders and governors often resisted
tooth and nail. They were acutely aware of the cost implications, and tradeoffs—more for
prisons meant less for social services. This situation was ripe for correctional entrepreneurs, and
they descended in droves (Logan, Dolovich, etc.). They promised a panacea: cheaper financing
and construction, cheaper provision of auxiliary services (e.g. laundry, food services,
maintenance, health care, transportation), as well the capacity to own, operate, and manage the
day to day operations of entire prisons at great savings--and with better results.
Earlier chapters have recounted how these actions were taken, and what some of the
expansive by-products were. One of the first and most successful efforts in privatization was the
construction and then management of “no frills” prisons, or “return to custody” centers, as they
are called in Texas. Faced with chronic over-crowding, the judge in the mega-prison conditions
case finally ordered the reduction of prison population and/or the rapid construction of new
facilities. Seeing an opportunity Wackenhut Corporation, a for-profit company with long
experience in providing security for banks and other secure institutions. A substantial and
growing portion of inmates in Texas prisons were returned to custody for technical violations of
parole and probation, and had to spend the balance of their terms in custody. These were often a
matter of weeks or months and rarely over a year. At the time, all Texas prisons were designed
as maximum security institutions, which meant that they were expensive and time consuming to
construct and costly to operate. Wackenhut proposed to construct no-frills institutions with less
security and fewer amenities for these short term detainees to serve out the (short) balance of
their terms. Wackenhut argued persuasively that “return to custody centers” could be built and
operated at a fraction of the cost of full service prisons. Faced with a crisis in prison
management, rapid population increases, and court orders to reduce crowding, state officials
greeted Wackenhut’s proposal as something of a dues ex machina, or at least a proximate
solution to an insoluable problem. It was seized upon as a life saver by officials in an
understaffed, ill-equipped, and under-funded prisons system that faced overwhelming problems.
Harried officials could hive off some of their problems to private contractors. What occurred in
Texas repeated itself in varying forms in other, mostly southern states.
Because of the chaotic conditions under which privatization was embraced—
unprecedented growth in the prison population, the continuing shrillness of the War on Crime,
unpopular court orders, sky-rocketing costs--there was and as of this writing continues to be little
sustained and serious analysis of privatization of prisons in the United States (note; there are
significant exceptions). Many of those involved in privatization simply “know it works.”
Skeptics or opponents can point to any number of horror stories, and outline a plausible case for
the emergence of a permanent new “prison-industrial complex.” So, despite the dramatic
expansion, there has been little reliable disinterested research on the consequences of
privatization or even the process of institutionalizing it. Opponents of for-profit prisons can
easily challenge the not-very-good research asserting that it does work; inmates are not randomly
assigned to public and private facilities, so comparisons that report greater efficiencies in private
facilities are easily challenged. Effectiveness is a morass; no one can agree on what to measure
and what can be measured is suspect. And while proponents can point to great flexibility of
staffing in private prisons, opponents can counter with reductions in amenities, untrained
personnel, and less programming. No doubt there are some reasonably good comparative studies
in the United States, but they are lost in the sea of claims and counter claims by advocates and
opponents.
Prison Privatization in Australia
The Australian experience is a study in contrasts. Prisons in Australia are only a fraction
of the size of the mega-institutions in the United States. Prison population rates are far lower in
Australia than the United States, and despite its own “war on crime, prison populations have
grown but at a far slower pace. Corrections officials there have not faced the massive problems
and sense of crisis and urgency that was and continues to be common in many American states.
There are no judges issuing orders or White Papers demanding far far-reaching and expensive
reforms. Nor is there a crisis in corrections leadership; Australian state public service institutions
are better staffed and more professionalized than their counterparts in America, and especially in
those American states which rely most heavily on privatization.
Furthermore, in Australia beginning in the 1970s and early1980s, plans were afoot to
replace a number of older prisons—horrible outdated Victorian structures well past their useful
lives. This development took place just as the wave of neoliberalism swept Conservative
governments into powers in several states. They brought with them new ideas about
deregulation and privatization, including the possibility of privatizing the new institutions that
were still in the early planning stages.
Superficially akin to developments in the United States, there is any number of important
differences. Public officials, including elected officials, in Australia have never abandoned the
idea of rehabilitative and training programming within prisons, nor do legislators campaign on
“lock ‘me up and throw away the keys” platforms. Australia corrections officials and those
heading ministries with corrections oversight are progressive thinkers with reformist ideas, and
have not suffered the despair common to so many corrections professionals in the United States
and particularly the South. Throughout the rise of neoliberal governments in the 1970s and
1980s, corrections officials continued to advance ambitious progressive plans for education and
rehabilitative programming for prison inmates. For the most part they were supported and
deferred to by elected officials with oversight responsibilities.
Of course, prison administration is a challenging task. Like prison reformers everywhere,
corrections leaders face stiff resistance to their ideas from line staff, deeply entrenched in their
routines, preoccupied with safety and security, and ensconced in their positions by civil service
and union protections. Time and time again, plans for reforms developed by progressive leaders
in corrections departments were thwarted by safety and security concerns of entrenched line
staffs.
So, when new conservative governments came into power and pressed for privatization of
prisons, some progressive prison officials sought to turn the development to advantage. Elected
leaders may have been motivated primarily by cost savings, but progressive corrections officials
saw an opportunity to construct new prisons, and organize and staff them in new and more
flexible workforce amenable to experimentation and reform.
This combination of factors in Australia, led to careful discussion and analysis of the
possible benefits of private contractors. Better design could lead to better programming:
corrections leaders could insist that private contractors implement new and much needed
reforms. Thus the sixth and final point in Richard Harding’s list above---“concern with regime
improvement”—was much more salient in the process of privatization in Australia than in the
U.S. It certainly was not the decisive or the most important factor, but it played a role, especially
for corrections leadership, when responding to pressures to privatize.
Contrasting Experiences in the United States and Australia
This book project was not designed to contrast the American and Australian experiences,
and the materials I have drawn on were mostly collected for other purposes, nevertheless the
materials I have gathered reveal significant differences in the process of privatization in the two
countries. The differences are striking and significant. Privatization in the United States was in
large part a desperate measure in the midst of crisis. Privatization in Australia was a considered
judgment. This is also reflected in the literature on privatization in the two countries.
Discussion of prison privatization in the United States are polarized. Private contractors
and a handful of researchers they have engaged make claims of both efficiency (less costly) and
effectiveness (lower recidivism rates, fewer suicides, less violence, and the like). For reasons
noted above, critics can easily challenge this research as both unreliable and invalid.
Public
debate is more rambunctious. Opponents of privatization point to frequent scandals in private
facilities: suicides, escapes, violence, under-staffing. Indeed one of the professional associations
of prison guards maintains an active electronic clipping service that publicizes failings in private
facilities. Prisons are big operations, and private prisons operate in a competitive atmosphere, so
there are frequent stories of questionable lobbying practices, including some documented cases
of bribery and imprisonment. So, privatization in the United States has come to smell of dirty
politics.
In contrast, proponents of privatization point to waste, bloated procurement systems, high
salaries, antiquated work rules, and the like. And point of the benefits of competition.
Underscoring both positions is the concern with unionization of prison guards. Current prison
officers almost to a person strongly oppose privatization, and view it as a form of union-busting.
Privatization proponents, like their opponents, insist that they support vigilant concerns with
safety and security, but maintain that prison staff should be open to more flexible hours and work
rules. A more flexible workforce, they maintain, can by itself result in substantial cost savings
without any sacrifice of quality.
Privatization in Australia has followed a different path. It has proceeded more calmly and
with greater care. It is not because there are no opponents. There are. And it is not because there
are so many proponents. Few top corrections officials who oversee private prisons are longstanding proponents who sing the praises of privatization, or have championed it in the abstract.
Almost everyone (except the contractors, I suppose) has a somewhat pragmatic view towards
privatization. Parliamentarians may concern primarily with cost savings, but reformers in
correctional planning offices see opportunities to develop new and often more expensive
treatment and rehabilitative programming. And they have consistently gotten the green light
these political leaders to pursue their reforms. In the tenders sent out for bid, corrections officials
have developed increasingly long lists of expectations so that in many instances the hoped-for
cost-savings of privatization have disappeared even before the new institutions are running
(Harding; Bales). More generally, practices in the new private prisons have come to be used as
bench marks for expectations for public prisons. As I suggested above, the experiences of the
two countries is a study in contrasts.
In my research in Australia, almost everyone I spoke to thought that the new private
prisons were better than prisons run by the corrections departments. Almost everyone agreed that
they had more and better programming that were likely to have better effects on the inmates.
Almost everyone thought that their staffs were more flexible and receptive to the new ideas
initiated by correctional leadership. Of course prisons are prisons, and no one thinks the new
prisons are likely to produce dramatic improvements in the behavior of the inmates either while
in prison or once released. But almost everyone I spoke with believed that on the whole private
prisons were better. And among those who did not concur, most thought they were about the
same.
Furthermore, the competitiveness of private contractors is real, certainly more than a
theoretical possibility. Some prisons in Victoria, New South Wales, and Western Australia
changed operators at the end of their contract terms, and with improved results (Ryne). Of
course not all private prisons were spectacular successes---indeed it is hard to imagine any prison
being a spectacular success. In one instance, in New South Wales a private contractor was so
ineffective that the state exercised its powers to reassume control of the prison. (This was an old
and outmoded prison, with a long and troubled history. It never improved, though it was closed
shortly after the state reassumed control of the prison, and inmates dispersed to other, new
prisons and a new replacement facility.) In another instance, the corrections department itself
decided to respond to a tender for operating one of the state’s prisons, and received the contract.
By all accounts, this prison is now better than it would have been had it been managed
continuously by public officials.
.
Upon what do I base this rosy picture? Certainly there are no reports on carefully
controlled research. My judgments rests mostly on reviews of dozens of reports describing and
monitoring the process of privatization, reporting on conditions in private facilities, and at times
comparing them with conditions with the most comparable public prisons. Hardly cutting-edge
research. However my confidence is bolstered by the near consensus among those I interviewed
about when asked to compare private and public prisons with which they were familiar. This
evidence was adduced in interviews with dozens of knowledgeable practitioners and scholars.
They included elected officials—ministers with the corrections portfolio, commissions of
corrections, public prison wardens, prison staff who has worked in both types of institutions, and
one leading representative of the union for public prison guards, who admitted, “I can’t say it in
the presence of the Commission and Minister, but the private prisons are better” (WA interview).
A similar view was held by scholars and other researchers who conduct research on
prisons, both public and private. Indeed, there is a small body of pretty good research assessing
the operations of private prisons and comparing them with public prisons (See Ryne and reports
listed in his document, as well as Harding). Consistently—not every time and always, but
consistently--these studies reveal that private prisons are among the best prisons in Australia, in
terms of recidivism rates (hardly a good measure of anything), prison violence, prison suicide,
guards’ assessment of the quality of work experience and inmate satisfaction, inmates own
assessment of their experience, and the like. In all sorts of ways, private prisons came out ahead.
Preoccupied as I was with private prisons, one push-back question I got from some of the
people I spoke to was something like, “Why are you so interested in private prisons?” This
question, which I heard in one form or another a number of times, suggested to me that private
prisons in Australia are now such a part of the landscape that questions about them are a bit
surprising. They are not controversial. The question is not whether, but how best to….?
There are any number of factors that may account for the normalization of private prisons
in Australia. Violent crime is only a tiny faction of what it is in the United States. Prison
populations are only a small fraction, or proportion, of what they are in the United States.
Prisons are tiny by American standards---many prisons house four or five hundred people, and
the biggest prisons house two thousand, not large in comparison to those in many American
states. Some staff move back and forth between private and public prisons. Private prisons are
closely monitored—probably more closely monitored for violations than public prisons.
Monitoring is meaningful; violations are detected, changes made. Staff in private prisons is
represented by unions, and while these unions are not as powerful as the unions for the public
employees, they are bona fide unions that provide meaningful collective benefits. Here too
accepted practices and attitudes from which our intuitions should be drawn do not reflect
concerns expressed in the moral theories of privatization considered earlier.
.
Other Forms of Delegated Correctional Responsibilities
The somewhat bored and uneventful response to privatization in Australia led me to
reflect on three other related issues in the United States: private facilities for juveniles; interjurisdictional prison compacts; and inter-jurisdictional imprisonment. These too are taken for
granted institutions that arouse little interest among those opposed to delegating state functions
to third parties or theorize about the need to protect the dignity of those under sanction from the
state. Indeed, I know of know of no sustained discussion theorizing against privatization that has
even bothered to mention them. Briefly exploring these institutions with the theories opposed to
privatization and delegation in mind is, I think, instructive.
Private juvenile facilities. Despite the heated and continuing debate in the United States about
corrections privatization, virtually all of it is addressed to privatization of adult correctional
facilities. There is no discussion of private facilities for juveniles. This is strange, since only
about two percent, if that many, adult offenders are held in private facilities, while in the United
States national figures reveal that over half of all juveniles in custody are held in private
facilities, some for-profit and others non-profit. Furthermore, private juvenile facilities have a
much longer history than private adult prisons.
There are several features of juvenile facilities that might make a difference for some who
generally oppose private prisons. Many juvenile facilities have minimum security or are open
institutions, and are not likely to be staffed by gun-carrying officers. So, deprivations of liberty
may not be so strict or at least overtly strict as facilities for adults. Many juvenile facilities are
small—housing from a dozen to up to fifty, and few hold over two or three hundred. In addition,
many facilities are run by non-profit groups, such as the Salvation Army, the Rehnenbaum
Foundation, rather than for-profit contractors. But many are managed by for-profit corporations.
Finally, in a formal sense juveniles in custody are not being punished. They have been
“adjudicated” delinquent and sent to the custodial center so that their “best interests” can be
realized. One could list a number of other important differences with adult institutions.
Of course private juvenile facilities generate their share of scandals. In the early 2000s,
two judges in Harrisburg, Pennsylvania were convicted and removed from office for receiving
kickbacks from the operator of a private facility for juveniles. They were discovered when it
was learned that they were committing far more kids to custody than the other judges in their
jurisdiction. A casual investigation revealed that almost all these kids were sent to the same
facility. One thing led to another and the scandal was exposed. Not good. But then there are
plenty of scandals, maybe even more proportionately, about the way public juvenile facilities
operate.
What is most striking in light of our concerns here, however, is just how little attention
the widespread use of private contractors in juvenile justice has attracted, and the puzzled looks I
get when I raise it with officials and juvenile experts. Indeed, one of the great triumphs in the
lore of contemporary juvenile corrections in the United States is the action of then Massachusetts
Commissioner of Youth Authority, Jerry Miller, who in 1969 dramatically removed every kid
from the various state-run “training schools.” In one fell swoop during the Christmas holidays,
he collected them in yellow school buses, and deposited them in dorms on an un-yet opened state
university campus. Over the course of the next few months, he found placements for them.
His actions were a desperate act of the governor who had appointed him. Faced with
mounting evidence of barbaric conditions in the training schools and an implacable unionized
staff that undermined any changes, he appointed Miller to devise and carry out a dramatic plan.
This is a well-known story among juvenile justice officials and scholars, and by all accounts it is
viewed as a great success, indeed a stunning achievement of which legends are made. (I confess
to view Miller’s actions as heroic.)
However, what is not so well-known about this dramatic episode is that the alternatives
that Miller eventually found for most of the children were private for-profit and non-profit
institutions. There were unanticipated consequences that some might not like (see chapter XX
for an analysis showing that this change led juvenile court judges to be more inclined to place
kids in custody than they had been), but there is no doubt that the new arrangements are far
superior on just about any dimension one can imagine than the Dickensian-like training schools
they replaced. And there is little doubt that the solution required dramatic action that
circumvented entrenched public institutions.
Here too, the near-invisibility of the vast network of privately run juvenile facilities and
the near cult-like response to Miller’s actions suggest that our intuitions about who runs these
institutions do not lead to the public sector. Perhaps juveniles are different, but no one yet has
explained how or why. But in light of some of the arguments in the anti-privatization theories,
one might conclude that younger and more vulnerable people in custody require more not less
state protection and direct state involvement than adult inmates.
Inter-jurisdiction compacts. The theories that reject privatization considered earlier in this
chapter emphasize the evils of for-for profit corporations, but ultimately they rest on the belief
that only the sovereign state who orders the punishment has the moral authority to impose it.
That is, in order to maintain the bond between the citizen and the state, only that state whose
criminal laws re violated possesses the responsibility for administering punishment to the wrong
doer. If so, this raises issues beyond privatization.
Consider this situation. Indeed, it is easy to consider since it occurs with regularity
though not frequently (admittedly not in Israel, but the United States). A person is duly tried and
convicted of a crime in one jurisdiction and sentenced to prison in that jurisdiction. But it
happens that the prison is some distance from the inmate’s home and family in another state. So
in the interests of justice and under well-institutionalized interstate compacts, the prisoner is
moved to a prison in a different state nearer his home and family. In the United States, this
arrangement is institutionalized between with Minnesota and Wisconsin, and other neighboring
states, and as well among states some distance from each other. And of course it sometime
occurs between countries. Keep in mind that in the United States each state has its own criminal
laws, criminal justice system, and prisons. These are regarded as core features of sovereign states
in the American federal system. There are as well variations on this arrangement. Foreign
nationals convicted in one country are at times returned to their home country to serve their
sentences. This is fraught with all sorts of difficulties, and inter-state arrangements which allow
it are detailed and circumscribed. But at times, the arrangement works, and offenders are moved
to their home country (and their native language, nearer to the families, and the like), and when it
works everyone celebrates.
Perhaps theory should instruct me otherwise, but my intuition lead me to believe that
arrangement described above is sensible and that it does not violate the dignity of the offender or
undermines the sovereignty of the punishing state. Indeed, it enhances the dignity of the inmate
and the states involved. It is smart and practical, exemplary public policy and good correctional
administration. Of course, one can easily imagine how it could be abused---sending California
prisoners who are Mexican nationals to Mexican prisons, or inmates in Iowa prisons to Alabama,
escaped slaves back to the South-- but it is a good idea if administered with care, and
particularly if, as is now always the case, inmates themselves must approve of the move.
Note here too, this scenario violates theory we are considering. The state, whose criminal
laws were violated, is not the state administering the punishment. The reciprocal bond has been
broken, or alternatively it is maintained only through the third party. Still, the human rights
lawyers I know and who are sensitive to loss of dignity and liberty celebrate when they hear of
such actions. Perhaps their sensibilities and hence their intuitions are under-developed.
Inter-jurisdictional contracting. Variations on this theme abound. In the United States jails in
some jurisdictions are heavily impacted and inmates—both those awaiting trial and those serving
misdemeanor sentences—are often sent out of the jurisdiction to be held in custody. New York
City contracts with any number of jails around the state and the country, and even has a 747 to
move them around. Smaller counties in the United States often contract with larger counties to
provide jail space for their offenders. Occasionally smaller counties will build over-sized jails
with the expectation that they can contract with larger counties with crowded jails to hold some
of their inmates at a profit. All of this could of course lead to conflicts of interest and corruption,
but it could also easily be effective and efficient public administration in a country like the
United States that carries localism to extremes.
This issue may loom larger in the United States than other countries, owing to its intense
localism. Judges may enforce state laws, but in many places they are county officials and county
policies with respect to sentencing and probation can vary widely. Almost everywhere, sheriffs
and jails are county functions, paid for by county taxes. Alternatively, in some federal systems,
criminal law and its administration is a national responsibility, so while there may be regional
variations in practice, there is one sovereign state—the nation—responsible for the
administration of criminal justice. Transfers across regions do not involve inter-jurisdictional
sovereignty issues.
Still, various possibilities of inter-jurisdictional transfers raise issues of who and where and what
the sovereign state is. Positing a simple sovereign model is useful for developing a clear and
compelling theoretical system, but the model can get complicated if not collapse when
confronted with “shared sovereignty” a term used by some scholars of federalism. The issue can
be composed--beyond the scope of this inquiry—once international criminal law is considered.
Who and where is the sovereign entity that should administer the punishment following
conviction in an international criminal court? Sovereignty may be more contested than we
would like to think. This too suggests the need for theorists to revisit the idea of the sovereign
state.
Conclusion
A categorical and universal theory of the sovereign’s duty to punish and to respect the
dignity of the criminal offenders under its authority is appealing. At first blush it may be
compelling. But facts can get in the way. After moment’s reflection on the history of
punishments, brief considerations of the contested theories of sovereignty, a grounded tour of
some recent practices in privatization of both adult and juvenile institutions, and review of some
other long-standing and well-regarded arrangements, the appeal of a general theory against
privatization dissolves. It might be that a highly contextualized theory that applies under certain
conditions makes sense, but a general theory is simply far-fetched in light of the various realworld considerations in the second half of this chapter. Reflections on the various considerations
assayed in this chapter as well as the grounded experiences I have recounted do not lead me, nor
do I suspect do they lead many readers, to conclude that the practices I described in Australia,
the juvenile justice system, and in the various inter-jurisdictional arrangements are wholesale
illegitimate.
It may be that something like Don Herzog’s “happy slaves,” we have unwittingly
consented to indignations of massive proportions (think of the fifty percent of the adult offenders
in Victoria in private prisons; the vast numbers of juvenile offenders in non-state run facilities in
the U.S. and elsewhere; the Wisconsin offender housed in a Minnesota prison) and simply fail to
see the error of our ways. False consciousness may have overwhelmed us. If so, the theory of
state-only administered sanctions should stir us out of our slumber. But as searched to grasp the
intuitive truths supporting the theoretical edifices, truth has continued to evade me. I remain
chained in the dim light of the cave unable to remove myself and find the light.
In the midst of an intense conflict during the Viet Nam War, a Marine Corps colonel was
said to have observed, “We must destroy the village in order to save it.” Must we do something
of the same for prisons? Is the experiment in Victoria, Australia with private prisons so large
and pervasive that it has become the new normal without anyone realizing the moral havoc is
wreaks? Are the fifty plus percent of juvenile offenders in the United States housed in private
facilities being denied dignity and liberty so that we should take emergency measures to correct
the abuses? Should Jerry Miller return the kids to the Massachusetts training school, and then
continue to badger entrenched employees to mend their ways, or search for ways to fire and
replace them all? Should the inmate who committed a crime in Dresser, Wisconsin fifteen miles
from St. Paul and housed in the state prison in Stillwater, Minnesota ten miles from his family in
St. Paul, be returned to Wisconsin where he committed the crime and housed in that state’s
prison in Baraboo, 250 miles from St. Paul?
The theories reviewed in this chapter would appear to answer all these questions in the
affirmative. But my answer is a less forceful no, and a follow up qualification: it all depends.
What does it depend on? I am unable to draw up a comprehensive list. But certainly to my mind
it does not turn on even more rigorous abstract theorizing that reaches for even greater
universality. Perhaps it requires more unpacking in order to show me how me I misunderstand
my own intuitions. Perhaps my moral intuitions are weakened owing to my sloth, and I need a
regimine of moral exercise that only brisk theorizing can provide. But I don’t think so. I’m
familiar with the facts. I have done due diligence, at least on this matter.
It is not that I reject theorizing. The theories reviewed raise important issues. But they do
not provide concrete answers. I think the matter requires more facts, more experience, more
nuance, more appreciation for the ways of the modern administrative state, more humility, and
more concrete concern with the conditions in which institutionalized persons of all sort exist. In
short, it requires more wisdom.
The response to the question, should we privative and its many variations?, should be, “It
all depends.” This is hardly a satisfactory answer, but it may be the first step towards wisdom,
and to sorting out a complicated and varied set of issues.