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Background .................................................................... 3
History of Private Prisons ................................................. 4
Massive Incarceration Now ................................................. 15
120,000 in Private Prisons ................................................ 17
For Profit Prisons Good ...................................................... 18
Cost Savings .............................................................. 19
A2: Savings Just Due to Wage Differences .................................. 28
Quality of Prison ......................................................... 29
Overcrowding .............................................................. 30
Flexibility in Prison Management ......................................... 32
Faster Prison Construction ................................................ 33
Local Jobs ................................................................ 35
Improved Public Prisons ................................................... 36
Rehabilitation/Recidivism ........................................................ 37
Better Facilities ......................................................... 38
Generally Superior Prisons ............................................... 39
Easier to Sue Private Prisons ............................................. 41
Any Problems Not Unique to Private Prisons ................................ 47
A2: Minneci Deprives Prisoners of Necessary Tort Remedies ................. 48
A2: Private Prisons Poorly Run ............................................ 50
A2: Riots in Private Prisons .............................................. 52
Can Reform Private Prisons, Don’t Have to Abolish ......................... 54
A2: Private Prison Horror Stories ......................................... 62
A2: Companies Build Prisons, Looking for Convicts ......................... 63
A2: Private Prison Lobbies Bad/Increased Incarceration Bad ................ 64
A2: Racism ................................................................ 65
A2: Illegitimate Delegation of Authority .................................. 67
For Profit Prisons Bad ....................................................... 68
Generally Bad ............................................................. 69
Inappropriate Delegation .................................................. 70
Out of State Prisoner Transfers Bad ....................................... 71
Rule of Law ............................................................... 73
Prisoner Rights ........................................................... 77
Prison Labor .............................................................. 81
Racism .................................................................... 82
Violence .................................................................. 83
Democracy ................................................................. 84
Reduced Services .......................................................... 85
Safety .................................................................... 88
Rehabilitation ............................................................ 90
Private Prison Lobby Bad .................................................. 95
Increased Incarceration ................................................... 98
Private Prisons Escape Oversight ......................................... 100
Prisoners Disadvantaged/Need Protected ................................... 102
Models of Legitimate Punishment .......................................... 103
Criticisms of the Private Prison Industry ................................ 112
Sentencing Reform ........................................................ 113
A2: We Can Reform the Private Prison, We Don’t Have to Abolish It ........ 116
A2: Contracts Solve ...................................................... 121
A2: Saves Money .......................................................... 124
A2: Privatization Reduces Overcrowding ................................... 129
A2: Private Prisons Safe ................................................. 130
A2: Oversight Solves ..................................................... 131
A2: Private Prisons Cheaper .............................................. 139
A2: Market Ensures Success ............................................... 140
A2: Private Prisons Pay Taxes ............................................ 141
A2: Public Correction Officer Units Push for Imprisonment ................ 142
Contracting to Privates Generally Fails .................................. 144
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“Pay to Stay” Prisons are Not Good ....................................... 146
Wilderson Answers ........................................................... 149
Progress Against Racism Now .............................................. 150
A2: “Burn it Down” Alternative ........................................... 151
Can’t Decide on Costs .................................................... 156
Can’t Decide the Debate Based on Quality ................................. 159
Can’t Decide Based on Recidivism ......................................... 161
Wilderson’s Method Fails ................................................. 163
Fatalism Turn ............................................................ 167
Fatalism Turn – Method Link** ............................................ 169
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Background
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History of Private Prisons
History of private prisons
Shymeka L. Hunter, 2000, Alaska Law Review, NOTE: MORE THAN JUST A PRIVATE AFFAIR: IS THE
PRACTICE OF INCARCERATING ALASKA PRISONERS IN PRIVATE OUT-OF-STATE PRISONS
UNCONSTITUTIONAL?, p. 324-5
While Alaska's use of out-of-state private prisons to house inmates is a very recent phenomenon, the relationship
between correctional institutions and the private sector dates back to the nation's beginnings. During the early republic,
private jailers housed criminals because the new nation was unable to do so. By the early nineteenth century, private
entities controlled the entire prison industry in some states. This control was exhibited primarily through leases, as
states leased prison systems to private entities. Private entities generated profits primarily by using prison labor to
manufacture goods or to provide services.
As the nineteenth century came to an end, the use of the private sector to house prisoners was rapidly declining,
and the government role in administering prisons increased. Additionally, some states discovered that the financial
benefits they had hoped to gain from turning the prison system over to the private sector were illusory. Concerns about
abusive conditions also soured views of private prisons. Consequently, support for this "industry" and development of
private prisons fell out of favor, and "the private prison industry fell apart."
Private interests did not completely disappear from the scene. Indeed, during the nineteenth and twentieth
centuries, governments regularly contracted prison labor out to private parties. The private sector often used the
prisoners as plantation and factory laborers. When the rise of labor organizations brought an end to this popular use of
prison labor during the twentieth century, the private sector found other ways to continue its relationship with
correctional institutions. For example, the private sector began providing many prisons with food services, medical
services, and educational services. The private sector's relationship with the correctional system was primarily limited
to this capacity until the early 1980s. At that time, the private sector began operating half-way homes, facilities for
juveniles, alien detention centers, and work-release programs. In 1984, Corrections Corporation of America began
operating the nation's first private prison since the nineteenth century.
Federal support from both the legislative and executive branches provided the necessary encouragement for the
private sector to operate this new business successfully. In 1988, Congress adopted new legislation authorizing the
Attorney General to enter into agreements with private entities to house prisoners. In 1992, President George Bush,
believing that privatization could help achieve the most beneficial economic use of resources, issued an executive order
requiring all federal agencies to encourage state and local governments to utilize private prisons. Combined with the
judiciary's historical validation of acts that delegate power to private entities, these measures virtually assured the
continued use of private prisons.
Like the federal government, state support of the private prison industry also contributed to the industry's
significant growth over the last decade. Indeed, just as the federal government began authorizing privatization of
prisons, so did state governments, including Alaska. In 1986, Alaska enacted Alaska Statutes section 33.30.031, which
provides that the Commissioner of Health and Welfare may enter into contracts with public or private entities to
provide for the confinement of inmates when the state lacks proper facilities. These private facilities may be located
outside the state upon the Commissioner's determination that the state lacks appropriate in-state facilities or that out-ofstate private facilities are necessary because of health or security reasons or due to imminent overcrowding. Similarly,
Alaska Statutes section 33.30.061 authorizes the Commissioner of Health and Welfare to contract with private out-ofstate facilities to house Alaska prisoners, as long as the Commissioner determines that rehabilitation or treatment of the
prisoner will not be substantially impaired.
Given the way the federal government and states like Alaska have supported the private sector's prison ventures
and the booming market, it is perhaps not surprising that by 1996 there were more than one hundred private jails and
prisons located across twenty-seven states. As of 1997, the private prison industry was grossing 550 million dollars
annually; Alaska is among the twenty-five states that make use of private prisons. Thirty-one states, the Federal system,
and Washington, D.C., reported a housing total of 71,208 prisoners in private facilities in 1999. Specifically, Alaska
housed thirty-five percent of its prison population in private facilities during 1999, making it second only to New
Mexico's thirty-nine percent.
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History of the private prison
Ahmed White, 2001, Associate Professor of Law, University of Colorado School of Law; J.D., Yale University School
of Law, 1994, American Criminal Law Review, 38 Am. Crim. L. Rev. 111, Rule of Law and the Limits of Sovereignty:
The Private Prison in Jurisprudential Perspective, p. 120
Despite its contemporary ubiquity, the prison is a relatively recent fixture in Western (indeed, every) society.
Moreover, from the outset the prison was infused with private ownership and control, and with private functions, in
many respects quite similar to the contemporary private prison. Only in the nineteenth century did the prison come to
constitute a common mode of criminal sanction in the United States, and only in the twentieth century did the prison
come to comprise a primarily publicly managed affair. It is fair to say that the prison was private long before and long
after it was, in fact, a prison. This history does much to anticipate the character of the contemporary private prison, its
juridical structure and its dysfunctions.
The historical development of the prison is utterly steeped in the interpenetration of the public and private realms
in Western society. Although the distinction of public and private realms was long ago introduced to the Western world
in a very furtive way--for example, appearing in the attempt of the early Roman law to distinguish public and private
wrongs--as a practical, concrete matter the distinction only really took hold in the nineteenth century, and only then (as
countless realists and critics have indicated) in a most incomplete fashion. Pre-modern societies, especially ancient
ones, are rather uniformly characterized by the confusion of public and private realms and, where law itself had attained
articulate form, a confusion of public and private legal norms. Frequently enough, the underdevelopment of the publicprivate distinction manifested itself in the juxtaposition of civil and criminal legal regimes and, perhaps even more
saliently, in the juxtaposition of public and private control of the administration of "criminal" sanctions. Only recently
in Western society did there exist anything even approaching a public monopoly of criminal justice functions. Of
course, state-structured punishments did appear in the pre-modern world, including the European world. But only rarely
did this involve any kind of formal, punitive incarceration, which almost always was used for purposes of criminal and
civil detention, and not for punishment as such. Much more typical were extra-legal punishments or punishments based
on the application of fines and tort-like sanctions, forced labor, banishment and exile, corporeal punishment, and the
like. These practices were consistent not only with the barbarism of the day but, more importantly, with existing
structural and material realities: the rigid social relations, the absolute lack of social surplus, and the general shortage of
labor in such societies. In this kind of historical context the prison as we know it--and as Georg Rusche and Otto
Kirchheimer stress--could not assume a central place in the system of social control.
When the practice of punishment by incarceration did appear in pre-modern society, it tended to reflect within
itself the prevailing confusion of the public and private in society as a whole. Almost always, early prisons, which in
scale, function, and internal structure were more like contemporary jails than anything, either were privately owned or
managed, or served transparently private functions, or both. From its very inception in Western society, the prison was
used to achieve such private ends as the collection of civil debts, the punishment and secreting away of rivals, and the
administration of domestic tyranny. In medieval Europe, this tradition played out perhaps most conspicuously in the
punitive use of prisons to maintain order within the essentially private domains of noblemen and clergy. In the early
modern era, this dynamic prevailed in the use of prisons to detain upper-class delinquents and the insane.
To an equal degree, the early prison almost always was a privately owned or managed affair. Feudal manors
maintained prisons that were private in the truest sense: privately functioning, privately managed, and privately owned.
From medieval times through the Industrial Revolution, the maintenance of European jails tended to be the personal
responsibility of local sheriffs and their analogues, enterprising minor noblemen, or everyday entrepreneurial "keepers."
Not just an obligation, though, this function remained a "business proposition" until at least the end of the eighteenth
century, with the keepers and "franchisees" taking fees from the state and inmates (or "customers") alike. In the
sixteenth century in Europe, there arose an institution that completely merged private (or at least non-criminal)
functions with for-profit management: the so-called "house of correction." The house of correction, which united under
private management the functions of poorhouse, jail, and manufactuary, also juxtaposed under private management
very minimal public safety functions (as we would now think of them) with public welfare and labor-control functions.
The private, labor-exploiting character of the house of corrections was not at all unique among early modern
punishments. Convict "transportation," especially, closely replicated the early prison's thorough juxtaposition of public
and private characteristics. Transportation saw the forced removal of tens of thousands of "criminals" (and the term has
to be used advisedly) from Europe to places like Australia, North America, and New Caledonia, where they spent their
terms laboring for private contractors, often in the immediate custody of such contractors. Other punishment regimes of
this time, forced labor on public works and galley slavery, were not exactly private; yet they too operated on a statist,
mercantilist logic of public profit-making that once again underscored the confusion of public and private in these times
and places.
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In the United States, the confusion of public and private impressed itself into the history of criminal justice
generally, and that of the prison more specifically. In colonial America, there were no true prisons and very few jails to
start with, and incarceration was rarely resorted to as formal criminal punishment. As in medieval Europe, labor was
too precious, social surpluses too short, and culture too backwards to justify such institutions. Punitive incarceration
was not, of course, unknown. However, as elsewhere, it was subordinate to other practices like banishment, fines,
corporeal punishment, and, of course, outright vigilantism. And where there were jails and prisons, they were typically
privately run operations--especially, it seems, in that even ostensibly public officials derived their salaries both from
fees as well as from charges levied on inmates. As in Europe, these facilities often took the form of privately-run houses
of corrections.
America generally is regarded as the birthplace of the modern prison--the prison, that is, as a place for large-scale,
long-term, and punitive incarceration. Indeed, the foundations of the modern prison were set with the inauguration of
two rather distinct models of the "penitentiary": the so-called "Walnut Street" or "Pennsylvania" system, established in
the 1780s; and the "Auburn" or "congregate" system, which grew out of the Walnut Street system early in the
nineteenth century. Both of these systems were premised on a set of common practices, centered around the segregation
of inmates into private cells and the enforcement of stringent rules of inmate silence. The main difference between the
two lay in their distinct ways of mobilizing inmate labor. The Walnut Street system, which mandated silence by
absolute solitude among inmates, lent itself only to the minimal, inefficient use of labor (for example, in a
manufactuary mode). The Auburn system retained for a time the Walnut Street system's rules of silence, but eshewed
the institution of absolute solitude in the course of instituting a much more efficient, collective, factory-like system of
labor. The Auburn system thus gave rise to a set of practices--most notably the mainly nocturnal use of private or semiprivate cells combined with some type of collective labor in the day--which continue to inform the structure of
contemporary prisons worldwide.
Though still infused with some private characteristics, each model of the penitentiary marked a significant
movement towards the modern, public prison. Both systems also brought about the segregation of criminal inmates
from civil detainees (for example, debtors). The inefficient Walnut Street system proved especially incompatible with
the profitable employment of inmates, and hence with private management or ownership structures. And while the
Auburn system could profitably employ labor, it was only rarely that this involved direct private control. Sometimes
jurisdictions leased out inmates to contractors who installed their capital in the prison and directly managed the inmates'
work; more often this system involved a more subtle reduction of erstwhile public institutions to the logic of private
market actors. Under the dominant "piece-price" system, prison administrators assumed the role of factory managers,
organizing the (hopefully) profitable production of commodities by their inmates. The quintessential big house prisons
employed this system to quite profitable ends, selling on the commercial market everything from shoes to furniture
until the twentieth century.
At the same time that the rise of the penitentiary marked a move away from the private prison, other institutions
from roughly the same period show just the opposite movement. Most obvious in this regard are the punitive aspects of
Southern slavery. In many ways, slave plantations in the antebellum South were private prisons unto themselves.
Masters and mistresses retained wide authority by custom and law to discipline their "properties" for all manner of
deed, criminal or otherwise. Of course, slave owners did not entirely monopolize criminal justice functions with respect
to their slaves, but they nearly did so, and the exceptions--for example, the modest and usually ineffective legal limits
on owners' disciplinary prerogatives--mainly prove the rule. In such a social system, incarceration exacted direct costs
in lost labor, fines were utterly inapplicable, and public punishments of all sorts implied a loss of slaves' services and an
abrogation of owner's prerogative. Accordingly, the punishment of slaves most often took the form of corporeal
punishment, extra work, and punitive resort to the slave auction, all privately administered.
In the postbellum South, until at least the 1940s, the practice of substituting the plantation for the penitentiary
continued in the guise of several different forced labor regimes. Among the more salient examples of these was the socalled "criminal-surety" system, whereby "criminal" offenders (for example, those who were "convicted" of violating
very dubious vagrancy, petty larceny, or trespassing laws) typically were afforded the "opportunity" to exchange future
labor for payment of their fines and "court costs" by local landowners and capitalists. Sometimes formal, statutorily
authorized outcome of convictions, sometimes informal and the result of pretrial plea-bargaining, the result was always
the same: reduction to peonage as criminal punishment (or, more accurately, criminal sanction as a source of peonage).
The offender usually was bound to remain and labor at his surety's establishment for months or even years earning
minimal wages against his debt.
Overview of the private prison industry
Mike Tartaglia, 2014, October, Student of law at Boston University School of Law, PRIVATE
PRISONS, PRIVATE RECORDS, Boston University Law Review, p. 1694-6
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The modern private prison industry was born in the mid-1980s when CCA, a Tennessee company, attempted to
contract with the state of Tennessee to operate its entire state prison system. Though its bid failed, CCA began to
purchase and build individual facilities, steadily increasing its market share throughout the United States until the turn
of the millennium. GEO was founded in Boca Raton, Florida in 1984 and expanded along with CCA throughout the
1990s. After increased public scrutiny of poor contract performance damaged the industry's reputation and relationships
with many governments, the industry experienced a resurgence, in large part due to its increased role in immigration
detention. CCA now controls 92,500 beds across 67 prisons; n28 GEO controls more than 61,000 corrections beds in 56
facilities, as well as many community-based and prerelease facilities. n29 Based on the most recent data available, the
private prison industry houses more than 8% of the nation's prisoners, nearly 18% of federal prisoners, and nearly half
of immigration detainees in the United States. States use private prisons to varying degrees: some states do not house
any prisoners in private facilities, while others house over 40% of their prisoners in private facilities. From 2000 to
2011, the number of federal prisoners in private facilities increased almost 150%, while the number of state prisoners in
private facilities increased nearly 23%. GEO took in more than $ 1.48 billion in revenue in 2012 from various
government contracts, 36% of which came from the federal government, and earned more than $ 208 million in profit.
CCA received nearly $ 1.76 billion in revenue in 2012 (43% from the federal government), and earned $ 156 million in
net profit. Government contracts contribute the vast majority of industry revenue in the form of taxpayer dollars.
History of private, for profit punishment
Clifford Rosky, 2004, Law Clerk to the Honorable Robert D. Sack, United States Court of Appeals for the Second
Circuit. Irving S. Ribicoff Postgraduate Research Fellow, Yale Law School, 2002. J.D., Yale Law School, 2001,
Connecticut Law Review, Spring, Force, Inc.: The Privatization of Punishment, Policing, and Military Force in Liberal
States, p. 900-2
The origins of today's private prisons can be found in the politics of yesterday's punishments. In Europe and the
United States, the 1960s and 1970s were decades of riot and reform within prisons. In response to allegations of
system-wide inmate abuse, European and American governments undertook significant overhauls of their prison
systems. During this period, the prisoners' rights movement was born and the idea of rehabilitation was resurrected.
These changes were short-lived. In the American presidential campaign of 1968, Richard Nixon launched a "law
and order" backlash against the prevailing tide of "liberal" law enforcement and punishment policies. In the early
1970s, this conservative campaign against crime spoke directly to the growing fear of violent crime in the United
States, and it dominated the American political stage until the end of the century. Over the next three decades, the
project of prison reform was forced into retreat, and the ethic of rehabilitation was largely supplanted by principles of
retribution and incapacitation.
In the meantime, federal and state legislatures introduced a large array of anti-crime measures that dramatically
increased the frequency and length of American prison sentences for both violent and non-violent offenders. The
American prison population skyrocketed. The business of imprisonment was reborn. In the 1980s and 1990s, roughly
1,000 jails and prisons were built in the United States. Today, Americans spend roughly $ 35 billion per year on
imprisonment, and the overcrowding of our prisons grows steadily worse.
From the very beginning, the American private sector was well-positioned to take advantage of this penal revival.
In the early 1970s, the federal government had already begun to support research and technical assistance that would
foster public-private partnerships in prison industries, and state governments had already begun to try out such ventures.
By the early 1980s, the Reagan and Bush Administrations, Congress, and Chief Justice Warren Burger were
aggressively recruiting private corporations to provide discrete prison services, finance and construct prisons, and
manage low- and mid-security facilities by signing employment, leasing, and ownership agreements.
By the end of the 1980s, the private prison industry had emerged and had begun to take on the task of providing
punishment in the United States. Complete private ownership and management became common in low-security
facilities housing the mentally ill, illegal aliens, juveniles, and minor offenders in most states. In the 1990s, at the
behest of the Clinton Administration, private corporations expanded into the business of managing minimum, medium,
and maximum security adult prisons. By 1998, twenty-six states had private prisons operating or under construction,
eight more states had passed statutes authorizing delegation to private prison firms, and there were over 154 private
prisons. By 2000, these prisons housed roughly 120,000, or six percent, of the nation's 2 million prisoners. Today, the
private prison population is growing four times faster than the overall prison population, and industry experts and
investment analysis predict more expansion to come.
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The private prison industry is changing and evolving quickly, but some clear patterns of doing business have
emerged. There are two American firms in the industry--Corrections Corporation of America ("CCA") and Wackenhut
Corrections Corporation ("Wackenhut")--that collectively generate about $ 350 million in revenues, and control about
seventy-five percent of private prisons, both in the United States and worldwide. In the United States, there are roughly
five other companies with the remaining twenty-five percent market share.
Although CCA and Wackenhut began by operating juvenile and INS facilities, the bulk of their business is now
minimum- and medium-security adult prisons and jails. n93 CCA dominates the U.S. market, but Wackenhut operates
prisons in the United Kingdom, Canada, Australia, New Zealand, and South Africa and is currently negotiating with
governments in countries such as Germany, France, the Netherlands, the Czech Republic, and Venezuela.
In the United States, federal and state governments often enter into arrangements with private prison companies,
under which the corporations raise capital, design and construct facilities, manage day-to-day operations, and sign longterm lease-purchase agreements. Recently, private companies have begun to build prisons prospectively, without prior
state approval. Management contracts are usually awarded to the lowest bidder, and pay schedules are based on per
inmate, per day fees. Private prison statutes typically (1) authorize public officials to enter prison management contracts
with corporations; (2) describe bidding procedures, which often include mandatory savings objectives; (3) demand that
the contractor carry insurance and obey all applicable laws and regulations; (4) provide for state monitoring; and (5)
reserve the state's authority to decide when prisoners are released.
.
History of the modern private prison
Sharon Dolovich, Professor of Law, UCLA School of Law, 2005, Duke Law Journal, December, State Punishment and
Private Prisons, p. 450-ff
I. The Emergence of the Modern Private Prison
A. Historical Antecedents
The involvement of private interests in American corrections began long before the current generation of private prison
companies emerged - indeed, even before the existence of the prison as we know it. Before addressing the modern
private prison, it is worth briefly considering some of this earlier history, which raises themes that will inform later
analysis.
In colonial America, the meting out of criminal punishment was purely a local matter and could include any of a
range of sanctions, among them fines, flogging, the stockade, banishment, and the gallows - but not imprisonment. As
in eighteenth-century England, jails were merely holding chambers for debtors or for those individuals awaiting trial or
punishment. Jailors paid for the running of the jails themselves and were reimbursed by the county according to a fee
schedule. They also routinely supplemented their income by taking bribes from prisoners in exchange for certain
privileges and charging prisoners for meals and alcohol. The less money spent on upkeep, the more money the jailor
made; jails were thus generally overcrowded and extremely unsanitary.
It was in the late eighteenth century that criminal punishment in America came to take the form of incarceration for
a set period in a penal facility. In the early penitentiaries, prison labor was introduced as part of rehabilitative programs,
but it quickly became the means through which state governments could recoup the costs to the state treasury of
imprisoning criminals. Indeed, the history of nineteenth-century American prisons is a history of contracting between
the state and private interests for the use of convict labor in efforts on both sides to achieve financial gain. These
contracts took many forms. In some cases, as with New York's Auburn penitentiary, contractors would supply the raw
material and collect the finished product at the end, with the work taking place at the prison. In others, as in Louisiana,
the state leased its entire penitentiary to a private contractor, who then assumed the cost of running the facility in
exchange for the labor of its inmates. The most common arrangements, however, involved the leasing of convict labor
for work on plantations, on railroads, in mines, or in other labor-intensive industries.
Although convict leasing was found throughout the nineteenth-century United States, it was most widely used in
the Southern states after the Civil War. This development was in part a function of the serious financial straits of the
former Confederate states in the postwar years; convict leasing offered a way both to defray the costs of incarceration
and to rebuild the shattered Southern economy. At the war's end, demand for convict labor was high, as those who had
previously relied on slave labor found themselves in need of a pool of cheap workers. Both in response to this demand
and as a way for white society to reassert its power over the newly emancipated black population, the Southern states
began to increase dramatically the sentences exacted against petty criminals, the vast majority of whom were former
slaves. For example, in 1876, the Mississippi legislature passed a "major crime bill," known as the "Pig Law," which
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redefined the crime of grand larceny to include "the theft of a farm animal or any property valued at ten dollars or
more." Violation of this law, which was "aimed directly" at the newly freed slaves, meant up to five years in state
prison. Moves like this one accompanied the legalization of convict leasing and ensured sufficient convicts to meet the
demand.
Convict leasing uniformly meant the severe abuse of leased convicts, thoroughly inadequate living conditions, and
utter indifference as to whether they lived or died. Because the prisons ensured a steady supply of convicts, from the
contractors' perspective one convict was as good as another. Many contractors therefore routinely worked their charges
literally to death.
Historical accounts of inmate labor contracts in nineteenth-century America reveal that the practice was plagued by
more than inmate abuse. In addition, state after state found itself being outmaneuvered and taken advantage of by the
private parties with whom the state had contracted for the labor of its convicts. In California, for example, the state tried
in 1858 to rescind a contract for the labor of inmates at San Quentin when it became known that the contractor, John
McCauley, had "blatantly violated" the terms of the contract "to squeeze as much out of the arrangement as possible."
n44 McCauley had "ignored the physical needs of the convicts, ignored the orders sent down from Sacramento, ignored
the suggestions of his own prison officers, ignored everything but his profit." McCauley fought the rescission in court
and won, and the state, which had entered the contract in the first place to save money on the running of San Quentin,
had to pay over $ 200,000 to buy him out.
The predominant theme of accounts of prison labor contracts gone awry is the state's vulnerability to
nonperformance by its contracting partner once the state had divested itself of responsibility for its prisoners. In
Virginia, n47 Nebraska, and Tennessee, the story was the same: the state leased its convicts to private interests,
discovered violations of the contract terms directed to increasing the profit of the contractor, and found itself unable to
cancel the contract. The reasons for this incapacity varied from state to state and included the lessee's political
connections (as in Louisiana and Kentucky), the state's dependence on the contractor to provide for the prisoners' needs
(as in New York, where in 1851 the wardens of Auburn penitentiary were forced to give significant concessions to the
contractor running an on-site carpet shop or leave "idle more than 300 inmates" and risk the loss of necessary revenue),
n51 and the risk that courts would side with the contractors (as in California), thus forcing the state to pay dearly to
regain state control of its prisons. In each case, for these various reasons, once the contracts had been signed, the
balance of power shifted to the contractors.
It would be a mistake to draw too many conclusions from this history for the current chapter of private sector
involvement in prisons. The contemporary experience is governed by a set of norms, not in place a century ago,
forbidding the economic exploitation and physical abuse of inmates. Today, there is also a stricter standard of political
accountability, an extensive public bureaucracy with the capacity to regulate and administer complex institutions, n54
and the default expectation that the state bears the burden of financing the prison system. n55 But as will be seen, this
history does introduce certain themes arising from private involvement in corrections that are still relevant today.
B. The Corrections Crisis of 1980s America
The reemergence of private contractors in American corrections is traceable to the dramatic growth in incarceration
nationwide over the past three decades. In 1985, there were over 740,000 people behind bars, up from 226,000 ten years
previously. By 1990, this number had hit 1.1 million, by 1995, it was almost 1.6 million, and by 2003 it was over 2.1
million. For legislators and prison officials around the country, this incarceration explosion created some vexing
practical problems: Where to put all the convicted offenders? And how to pay the bills?
Initially, state officials nationwide responded to the first of these problems - finding room for all the bodies - by
shipping convicted offenders to existing penal facilities and letting the wardens sort it out themselves. The limitations
of this approach, however, were soon clear, as prisons and jails quickly came to be operating well over capacity.
Eventually, the courts began issuing orders requiring government officials to relieve the overcrowding, n61 and it
became apparent that more prisons had to be built. But this solution, too, had its problems: building prisons is not
cheap, and the building process itself can be complicated and time consuming. Jurisdictions urgently needing new
prisons thus faced - and still face - serious obstacles to getting new facilities up and running.
Nor was the second practical problem caused by the rapidly increasing incarceration rate - how to foot the bill fully contained in the cost of building new prisons or renovating old ones. Prisons also have operating expenses, and
these costs, too, can be high. Corrections officials have to be trained and their salaries and benefits paid; inmates' food,
clothing, medical care, programming, security, and so on, must be provided for; overhead must be covered. In all, by
the mid-1980s, many states were facing serious budgetary problems traceable to the increased cost of running their
prison systems, and these problems have only grown in intensity as incarceration rates have continued their upward
climb.
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C. Enter the Private Sector
It was under these circumstances that the states turned to the private sector for help. The help offered took two forms.
First, the private sector offered to assist states with the capital financing of prison construction, a version of private
sector involvement known as "nominal privatization." Second, private firms offered to take over the day-to-day
management of entire penal facilities, pledging to run the prisons at a lower cost than the state would otherwise pay. At
the time these firms emerged, this latter form of privatization - "operational privatization" - was not a new idea; in the
late 1970s, the federal Immigration and Naturalization Service (INS) had begun contracting with private firms for the
building and operation of holding facilities for illegal immigrants awaiting hearings or deportation. What was new was
the status of those to be housed in the privately managed facilities - adults convicted of crimes and sentenced to state
custody as punishment. Notwithstanding this difference, the process of privatizing the prisons took the same form as
with the previously privatized INS facilities: states deciding which facilities to privatize and issuing a request for
proposals (RFP), firms bidding for the contract, and the winning firm getting a set payment per inmate per day in
exchange for assuming responsibility for running the facility and providing for inmates' needs. There are variations on
this standard arrangement, but the basic idea in each case is the same: "the state remains the ultimate paymaster and the
opportunity for private profit is found only in the ability of the contractor to deliver the agreed services at a cost below
the negotiated sum."
The present Article focuses on this latter, operational form of privatization. The state's motivation in relying on the
private sector in this way is a simple one - to find a way to house the growing inmate population while keeping costs
down. And the prison-management companies themselves are equally financially motivated - the aim was, and is, to
make a profit.
The first private entity formed to take advantage of this new business opportunity was Corrections Corporation of
America (CCA), founded in Nashville in 1983. CCA's founders had no experience in corrections, but from the start, the
company's management personnel were drawn from the public sector, including former state corrections
commissioners, at least one former head of the federal Bureau of Prisons (BOP), and any number of former state prison
wardens and superintendents. Wackenhut Corrections Corporation, the prison-management division of global security
giant Wackenhut Security, Inc., entered the market soon after. Both CCA and Wackenhut were turning a profit by the
late 1980s, and by the mid-1990s, they together controlled 75 percent of the American private prison market.
From the start, these companies faced a serious challenge, one that remains for any company trying to make money
from running a prison. If the state is to reduce the cost of its prisons through contracting out to the private sector, the
contract price must be less than the total cost the state would otherwise incur in operating the facility. And if private
providers are likewise to make money on the venture, they must spend less to run the prisons than the contract price
provides. For such arrangements to be remunerative for both parties, therefore, private prisons must be run at a
considerably lower cost than the state would otherwise incur. At the same time, contractors must not allow either the
quality of conditions of confinement or inmate safety to drop below existing levels; even staunch advocates of private
prisons have insisted that "concern with cost savings should not outweigh considerations of quality."
In practice, private prison providers have seemed little concerned with meeting this challenge. Instead, the
anecdotal evidence suggests that contractors have prioritized economy above all else, with disturbing results for the
inmates themselves. Consider, for example, CCA's Youngstown, Ohio, facility. When the Youngstown facility opened
in 1997, CCA filled the medium-security prison with prisoners from the overburdened Washington, D.C., prison
system. The incoming D.C. inmates included a number of violent inmates classified as "maximum-security, high-risk,"
which CCA "reclassified" as medium security to fill the beds without having to equip the facility to handle maximumsecurity inmates. Over the next eighteen months, the Youngstown facility saw more than forty-four assaults and two
fatal stabbings, including one inmate who was stabbed to death when a shortage of beds in the administrative
segregation unit (a prison's protective custody area) led prison officials to house the victim with two men who had been
threatening his life.
At CCA Youngstown, economizing also took other forms. Former employees of the prison, for example, reported
receiving a "rundown" by their employers, "saying two slices of bread per inmate costs this much. If you can cut
corners here, it would mean a possible raise for us." At Youngstown, even the "toilet paper was rationed," to the point
that "inmates were forced to go without it, using their bedsheets instead."
Other incidents elsewhere suggest Youngstown is not unique for either its cost cutting or the troubling effects of
such measures. This is not surprising, for efforts by private prison providers to cut costs even at the expense of inmates
is the entirely predictable result of the existing structure of private prison contracts. Indeed, as I show, there is good
reason to think that, where both the state and the contractor seek financial advantage, the challenge private prison
contractors face - of running the prisons for less money than the state would otherwise pay without also bringing about
a drop in the quality of prison conditions - cannot be met. There is, moreover, a further concern to which the use of
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private prisons gives rise, that fostering the private prison industry could create a powerful constituency with a financial
interest in longer prison sentences, and the political clout to push sentencing policy in this direction, regardless of
whether such punishments are consistent with the demands of legitimate punishment. These two possibilities lie at the
root of the liberal critique of private prisons. But before this critique can be pursued, more must be said about the
foundation of the legitimacy standard on which it rests.
Historical overview of private corrections
US Department of Justice, 2001, Emerging Issues on Privatized Prisons,
https://www.ncjrs.gov/pdffiles1/bja/181249.pdf
Private enterprise in the United States has an extensive history of involvement in the provision of
correctional services. According to Feeler (1991), the involvement of the private sector in corrections stems,
in part, from an Anglo-American political culture that is somewhat skeptical of governmental authority yet
promotes private initiative. Feeler traces the private sector involvement back to shortly after the first English
colonists arrived in Virginia in 1607. The colonists were followed by a handful of convicted felons, who
were transported by private entrepreneurs to America as a condition of pardon to be sold into servitude.2 The
overseas transportation of these felons was organized by private entrepreneurs.
Merchants transported convicts in exchange for the privilege of selling them as indentured servants (Ammon
et al., 1992). Transporting convicts to America (and later many more to Australia following the American
Revolution) was an innovation that radically transformed the administration of criminal justice. This
innovation expanded the power of the state to impose sanctions without the need to increase its
administrative structure. In other words, transportation of felons increased the state’s penal capacity at a low
cost to the government.
During the 18th century, the modern prison emerged in America as a viable alternative to servitude or the
death penalty. Also during this time, the use of privately operated facilities became popular. In the colonies,
criminal justice procedures were copied from English custom, which had a long history of private
involvement in operating jails. Privately operated jails date back to medieval England (Pugh, 1968).
For a fixed fee states allowed private contractors to supervise prisoners inside prison walls (Ethridge and
Marquart, 1993). Although appointed by the government, a head jailer was considered an independent
operator of a profit-making enterprise functioning as a government contractor. Often, jailers employed
prisoners (McCrie, 1993). In privately operated facilities, inmates were often engaged as laborers and
craftsmen in private-sector activities. Early American jails may be characterized as exploitative. Cripe
(1997: 378) describes the conditions: There was seldom any separation of types of prisoners—women and
children were often confined with hardened criminals. Many jails were very crowded; most were unsanitary.
Payments were extracted for special services, such as better meals or other privileges. Some money was
given to the jailer (often the sheriff) for basic services. But it was widely accepted that jailers could charge
additional money for virtually any type of special benefit. By 1885, 13 states had contracts with private
enterprises to lease out prison labor (McCrie, 1993: 24). One of the more interesting situations occurred in
California at the San Quentin prison, which was the first facility constructed and operated by a private
provider in the 1850s. Private entrepreneurs persuaded state officials that the facility could best be operated
under a long-term lease arrangement with an entity that had experience in law enforcement. Even back then
the debate centered on costs, with the argument made that a private-sector entity would be less expensive
and less corrupt than the government. However, after a number of major scandals surfaced surrounding the
mismanagement of the facility by the private provider, the state decided to turn the facility over to the
control of state government. Eventually, the government turned out to be as ineffective and corrupt as the
private provider (Lamott, 1961: 74, 78): As the year [1856] went on it became increasingly clear to more and
more people that, regardless how much money it might save the taxpayers, a private contract was no way to
run the state prison.
The Bulletin was not alone when it demanded that, whatever it cost, a final end had to be put to the system of
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farming out the management of the state convicts. . . . After the final ejection of [Warden] McCauley,
however, the prison fell into the hands of men who were primarily professional politicians rather than
pirates. The distinction is a nice one, and the change was more a matter of style than of substance. The
prison remained a rich piece of political spoils, but the looting was now carried on more in line with the
ancient traditions of American state politics Even back then, private contractors were claiming that they
could both manage prisons and employ convicts in labor, arguing that the practice would be both
rehabilitative and financially rewarding.3 Prison models of convict labor took various forms. At some,
companies outside the prison provided raw materials that were refined in prison workshops and later sold by
private companies. At others, prisons leased their inmates out to private farms or other businesses if they
could not produce salable items within the prison. In a number of states, contractors paid the prison a fee or a
percentage of the profits for the right to employ convicts. For example, in the 1860s the Texas legislature
directed state correctional administrators to contract out inmate labor to the private sector. Even when
prisons were not operated entirely by private entrepreneurs, inmates were used as a cheap source of labor.
Prisoners often worked on farms, railroads, and mines, in addition to other public work programs.
For most of the correctional history of the United States, prison labor was expected to generate a profit for
the institution. If generating a profit was not feasible, it was incumbent upon the prisoner to pay the costs of
incarceration and become self-supporting. The “managers” of early detention facilities charged their inmates
for food and clothing, while providing substandard service. The income generated by inmate labor, however,
was not sufficient to cover the high costs of operating correctional systems, despite persistent and intense
efforts to make the system pay for itself (Feeler, 1991). Without independent oversight and monitoring, the
convict labor system eventually succumbed to bribery and corruption.
Moreover, organized labor, manufacturers, and farmers strongly opposed the convict lease system. This
broad constituency opposed what it considered was unfair competition and pressed for legislation restricting
the use of convict labor and convict-produced goods. Public opposition was also mobilized by reformers and
religious groups that protested the scandalous conditions found at many of the privately run facilities and in
labor lease systems. State legislatures began investigating alleged incidents of mismanagement and cruelty
within privatized institutions, resulting in modifications to the leasing system.5
An executive order signed by President Theodore Roosevelt in 1905 prohibited the use of convict labor on
federal projects. In 1929 Congress passed the Hawes-Cooper Act permitting states to ban the importation of
inmate products from other states (Ammon et al., 1992: 4–5). During the Great Depression, Congress and
state legislatures also passed laws that further curtailed the use of inmates in private enterprise. By the
1920s, the prevailing practice in American correctional agencies was to increase governmental involvement.
The subsequent demise of the convict lease system eventually gave way to state-run institutions. The
operations and administrative functions in correctional facilities were delegated to governmental agencies,
authorized by statute, staffed by government employees, and funded solely by the government (Cripe, 1997:
380).
Beginning in the early 20th century and until more recently, the custom in American correctional agencies
was to provide virtually all correctional services as governmental functions in institutions constructed and
maintained at the government’s expense.6 In some program areas, rehabilitative services were provided by
volunteer associations (religious and educational). Generally, however, private involvement in the provision
of correctional services was diminished.
To manage escalating costs associated with supporting the many functions required to effectively run penal
institutions, a trend gradually developed in the 1900s for the contracting out of prison services to both profitmaking and not-for-profit firms. Prisons added services such as food preparation, vocational training, and
inmate transportation to the list of provisions that were contracted out (which already included medical,
dental, and mental health services). By the mid-1970s, federal, state, and municipal governments were again
willing to expand their association with the private sector, moving beyond the conventional contractual
relationship that had become common in the early 20th century, and private enterprise began To play an
influential and expanded role in the functioning of correctional facilities. According to Durham (1993: 33),
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the 1970s ushered in a new phase in the development of private corrections, beginning with juvenile
correctional operations: In 1976 RCA Services, a private company, assumed control of the Weaversville
Intensive Treatment Unit located in North Hampton, Pennsylvania. This facility was designed to handle male
delinquents. Although the private sector had long been involved in providing a wide range of correctional
services . . . this was the first modern institution for serious offenders to be completely operated in what has
become an increasingly lengthy line of such institutions in the American correctional system.
The Weaversville Intensive Treatment Unit for Juvenile Delinquents is widely regarded as the first highsecurity institution that was entirely privately owned and operated under contract to the state. The second
suchi nstitution did not open until 1982, when the state of Florida turned the operation of the Okeechobee
School for Boys over to the Eckerd Foundation Logan and Rausch, 1985: 307).
The trend toward privately operated juvenile correctional facilities has continued, with more than 40,000
youth now housed in privately operated juvenile facilities. It is noteworthy that these operations have not
received nearly the level of scrutiny and criticism as have their adult counterparts. This may be due to the
fact that some, but not all, are not-for-profit operations. The U.S. Immigration and Naturalization Service
(INS) was among the first governmental agencies to take advantage of the emerging market of private prison
operators. At the end of 1984, INS had contracts with two private companies for the detention of illegal
aliens; by the end of 1988, theÊnumber of private INS detention facilities had grown to seven, housing
roughly 800 of the 2,700 aliens in INS custody (McDonald, 1994). Also during this period, the Corrections
Corporation of America (CCA) was awarded a contract to manage the Hamilton County Jail in Chattanooga,
Tennessee. This was followed by the first state-level contract award in 1985, when Kentucky contracted with
the U.S. Corrections Corporation to manage a correction facility. According to McDonald (1994), these
developments initially provoked little controversy or even notice, most likely because private-sector
involvement in correctional management was still limited in size and scope.7 The importance of these early
contracts has been noted by Thomas (1997b), a strong advocate of private prisons.
The importance of these contract awards to the subsequent development of correctional privatization would
be difficult to over-estimate and the fact that all remain still in force today with the same management firms
is not inconsequential for those who would be willing to accept this fact as at least an oblique performance
indicator. Each provided a real world opportunity to test the hypothesis that contracting could yield
meaningful benefits to government. Each also provided a valuable model that subsequent units of
government could examine and improve upon in such critical areas as procurement strategies, the
formulation of sound contracts, and the creation of effective means of contract monitoring.
Security adult institutions, once considered the near exclusive and inextricable preserve of government,
emerged as a central issue debated among correctional agencies. Finally, in the last few years, governments
have sought to contract out capital expenditure costs and operational services, including prison design,
construction, and management (Yarden, 1994).
Thus, the pressure of increased incarceration rates, combined with rising correctional costs, has enabled
privatization of penal facilities to reemerge as an acceptable political and correctional system operational
concept. This reemergence, however, has stirred considerable debate over the viability Of privately operated
prison facilities. The current enthusiasm for privatization is fueled by the prospect of more innovative, costeffective prison management, including the anticipated private-sector involvement in the financing of new
prison construction. This enthusiasm is not shared by all. Much of the contention is reflected in the literature,
especially with regard to the alleged advantages and disadvantages to private facility management.
History of prison privatization
Lucas Anderson, 2009, is a J.D. candidate at The George Washington University
Law School and a member of the Public Contract Law Journal, Public Contract Law
Journal, https://www.prisonlegalnews.org/news/2009/dec/15/kicking-the-nationalhabit-the-legal-and-policy-arguments-for-abolishing-private-prison-contracts/
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The modern prison privatization trend has significant historical precedent.
State and local governments have contracted with private entities to administer
various aspects of penal administration since the early colonial days.18 In the
eighteenth and nineteenth centuries, many private businesses employed prisoners
as a source of cheap manual labor.19 Inmate labor practices continued until the
early twentieth century, despite a troubling pattern of prisoner abuses that
arose under the watch of private prison companies.20 By the 1920s, for-profit
prison labor programs were largely eradicated in response to protests from labor
reform advocates and claims from competing industries that prison labor
constituted unfair competition.21
In the 1970s and 1980s, private interests once again assumed control of various
prison administration functions.22 This re-privatization began as a piecemeal
shift involving inmate food and medical care services, but quickly accelerated
to the point where the Federal Bureau of Prisons and some states were
outsourcing operations functions for entire jails and prisons.23 In 1984,
Corrections Corporation of America (CCA), currently the largest private prison
contractor in the United States,24 contracted with the state of Tennessee to run
its Hamilton County facility.25 Since then, the private prison industry has
grown considerably, operating prisons, juvenile centers, and other correctional
facilities under contract with the Federal Government and many state and local
governments.26 By 1996, thirteen states had outsourced some portion of their
penal systems27 and by 2004, thirty-four states had embraced the privatization
trend.28 Despite considerable skepticism from legal and policy commentators and
evidence that the purported benefits of privatization are generally
unavailing,29 only New York and Illinois have enacted legislation expressly
barring private prison contracts.30
The recent surge in corrections privatization is largely a product of the
Government’s choice to build new facilities to accommodate large inmate
populations, rather than address the root causes of overcrowding.31 Drastic
rises in incarceration rates are attributable not to increased criminal activity
-- as indicated by statistics demonstrating that property and violent crime
rates have generally fallen since the early 1970s32 -- but rather to various
items of “get tough” legislation at the federal and state levels, such as
minimum mandatory sentencing guidelines,33 three-strikes laws,34 and the War on
Drugs.35 Thanks largely to these measures, there are currently over 2.3 million
Americans behind bars, accounting for approximately one percent of adult
Americans.36 Instead of repealing ineffective and costly criminal laws, which
may be a politically unpopular solution, many lawmakers continue to support new
prison construction as a means to accommodate the influx of prisoners convicted
and sentenced under these draconian measures.37
An expanding carceral system requires difficult budgetary choices.38 However,
contracting with the private sector to not only build, but also administer,
prison facilities allows the Government to address the overcrowding problem,
without facing the politically unpopular specter of prison bonds or tax
increases. In the long run, this short-term fix only aggravates governmental
corrections expenditures and creates additional economic and social problems.
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Massive Incarceration Now
Massive incarceration in the US, blacks more likely to be incarcerated
Doug Jones, 2008, J.D., Pace Law School, 2007, A CRUEL AND UNUSUAL SYSTEM: THE
INHERENT PROBLEMS OF THE PRACTICE OF OUTSOURCING HEALTH CARE OF PRISONS
AND JAILS, CHICANA/O-LATINA/O LAW REVIEW, p. 179
The prison and jail population in the United States is enormous, and is growing larger every day. "The United States
has about 2.1 million people behind bars, a larger proportion of its population than any other nation in the world." The
inmate population has grown an average of 3.8% each year from 1995 to 2002. By the end of 2001, "State prisons
operated between 1% and 16% above capacity, and Federal prisons operated [at] 31% above capacity." Such a large
correctional system currently costs more than $ 60 billion a year, up from just $ 9 billion two decades ago. In 2005, the
rate of incarceration in the United States grew to 737 per 100,000 persons. In comparison, the United States' closest
competitor in this field is the Russian Federation, whose imprisonment rate is 611 per 100,000 persons. Prisons and
jails in the United States are overcrowded and many strain to handle the vast number of inmates they detain. In fact, the
increase in the rate of imprisonment in America far exceeds the rate of increase in the general population. Additionally,
the majority of inmates are black or Hispanic. The impact of the growth of imprisonment has been most severe on black
men. n9 Almost three in ten black males will be incarcerated at some point in their lives. That figure is three in twenty
for Hispanic men and less than one in twenty-five for white men.
Blacks bearing the brunt of massive expansion of imprisonment
James Forman, Jr, January 2011, Cardozo Law Review, Professor, Georgetown University Law Center.
ACKNOWLEDGE RACE IN A "POST-RACIAL" ERA: THE BLACK POOR, BLACK ELITES, AND AMERICA'S
PRISONS, p. 792
Principally - though not exclusively - because of our nation's penal system. We now have 2.3 million of our fellow
citizens under lock and key - a number that is unprecedented for a democracy. Approximately one in one hundred
adults is in prison or jail at any given time. The United States, with 5% of the world's population, now has 25% of its
prisoners. This is a relatively new experiment. America's incarceration rate held roughly steady for much of the nation's
history. The prison explosion began in the early 1970s, with the number of people in America's prisons and jails
growing sevenfold since then. It is also a tremendously expensive experiment. Total state spending on corrections
reached $ 49 billion in 2007,1 and the recent fiscal crisis has forced states to cut spending in areas such as higher
education and health care in order to meet their corrections obligations.
African Americans have borne the brunt of the prison explosion. Blacks constitute a larger percentage of the prison
population today than they did at the time of Brown v. Board of Education. This trend is especially shocking given
America's racial progress over the past fifty years. The civil rights movement radically reshaped the nation, ushering in
an era of increased opportunity for black Americans in virtually every domain of American society. At his inauguration,
President Barack Obama stood as proof of this progress, and he used the occasion to remind us all of his utterly
improbable journey. "[A] man whose father less than sixty years ago might not have been served in a local restaurant,"
he said, "can now stand before you to take a most sacred oath." Obama's election was not the only marker of change. A
host of statistics indicate that a great many African Americans are substantially better off than they were before the civil
rights movement.
Yet a black man born in the 1960s, after the victories of the civil rights movement, is more than twice as likely to
go to prison in his lifetime as was a man born during the Jim Crow era. One in nine black men between the ages of
twenty and thirty-four are behind bars at any given time. There are few indicators of community health in which the
black-white disparity is as great. Blacks are about eight times as likely to go to prison as whites, which dwarfs blackwhite disparities in, for example, unemployment rates (2-to-1 disparity), infant mortality (2-to-1 disparity), and out-ofwedlock births (3-to-1 disparity). Meanwhile, the number of African Americans under court supervision, and the
number of former prisoners struggling with re-entry, are also at historic highs.
These statistics remind us that our criminal justice system is not remotely post-racial. But recognizing this fact is
only part of a response to the questions raised by this symposium. We were also invited to reflect on how race and the
challenges associated with it have changed in recent years. So allow me to return to the issue of prisons, or more
specifically prison-going. Here we should identify an important trend that will necessarily complicate how scholars
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think about race and criminal justice. The trend is this: The rise in African American incarceration rates has been
concentrated almost entirely among lower-class, uneducated blacks.
US imprisons a higher percentage of its population than any country in the world
Vicky Palaez, March 31, 2014, “The Prison Industry in the United States: Big
Business or a New Form of Slavery?”, http://www.globalresearch.ca/the-prisonindustry-in-the-united-states-big-business-or-a-new-form-of-slavery/8289
There are approximately 2 million inmates in state, federal and private prisons
throughout the country. According to California Prison Focus, “no other society
in human history has imprisoned so many of its own citizens.” The figures show
that the United States has locked up more people than any other country: a half
million more than China, which has a population five times greater than the U.S.
Statistics reveal that the United States holds 25% of the world’s prison
population, but only 5% of the world’s people. From less than 300,000 inmates in
1972, the jail population grew to 2 million by the year 2000. In 1990 it was one
million. Ten years ago there were only five private prisons in the country, with
a population of 2,000 inmates; now, there are 100, with 62,000 inmates. It is
expected that by the coming decade, the number will hit 360,000, according to
reports.
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120,000 in Private Prisons
120,000 people in private prisons
Ahmed White, 2001, Associate Professor of Law, University of Colorado School of Law; J.D., Yale University School
of Law, 1994, American Criminal Law Review, 38 Am. Crim. L. Rev. 111, Rule of Law and the Limits of Sovereignty:
The Private Prison in Jurisprudential Perspective, p. 112
At present, about 120,000 men, women, and children are incarcerated in privately managed, for-profit jails,
prisons, and detention facilities--in the hands, literally, of an oligopolistic industry with annual revenues of at least $ 1
billion and perhaps far more than this. Though these figures are still dwarfed by the two million jail and prison inmates
in America today and the huge economic scale of incarceration generally, they also reflect an annual rate of growth in
private incarceration that has over the past several years averaged four times that of the (already astronomical) overall
growth in criminal incarceration. Perhaps more tellingly, this industry only emerged in its modern form about fifteen
years ago.
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For Profit Prisons Good
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Cost Savings
Private prisons save money and sustain performance
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics,
Temple, April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
The critical issue of this study is the finding for the savings state gover
nments derived from contracting out prison services. When the state legisl
atures enacted the statutory requirements for savings, they usually did no
t specify the exact nature of the savings. In this study, we distinguished
between the direct operating savings that relate to the short run and the o
verall savings, which relate to the long run. As indicated earlier in this
report, long run savings are the correct measure, except when a PPP prison
manages an existing public facility. The typical motivation for PPP priso
ns is to relieve overcrowding where the only viable alternative is for the
state to build its own prisons. Further, given the aging of U.S. prisons,
even without overcrowding, some substantial rebuilding is often necessary
, making long run costs applicable. Another lesser but related motivation
is to save state resources.
Our study found that contracting out inmates to private prisons saved sta
te governments money while maintaining performance at least at the same q
uality as public prisons. A head of corrections of a large state suggeste
d that the compliance with the detailed contracts help ensure comparable
performance. The existence of private prisons fosters competition and he
lps constrain spending on public prisons.
Shortterm savings run the gamut from Oklahoma’s loss for mediumPsecurity p
risons of 2.16 percent all the way to California’s savings of 57.36 perce
nt. Texas and Oklahoma’s maximum
security private prisons had relatively high short run savings of 37.39 a
nd 29.23 percent, respectively.
As discussed earlier in section 3, the indirect costs are incorporated in
the short run costs. The reported indirect costs range from $3.72 per inma
te per day to $6.64 per inmate per day. We used mostly the estimates of the
Vera report when available. Studies for the legislatures of Oklahoma and T
ennessee concluded that about 75 percent of indirect costs continued even
for the privatized inmates. In the long run, adjustments often occur and t
he private prisons might assume more of these currently government functi
ons. Thus, in the long run, a greater percentage of the indirect costs may
be avoided. In any case, the magnitude of the indirect costs is small and c
ould not affect the results. As discussed in section 4, either the entire
or only 25 percent of the indirect costs could be considered avoidable. We
calculated in Table 1 both alternatives, however in our conclusions we ma
intained our conservative approach and considered only the 25 percent as a
voidable costs. In any case, available data indicate that indirect costs
are quite low, most in the range of $5 to $7.
Long term savings ranged between Kentucky’s 12.46 percent and California’s
58.61 percent, while Maine was close to California with potential saving
s of 49.38 percent. Maine, which does not contract out to private prisons,
was incorporated in this study because of the availability of its detailed
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data. The extent of the details for the direct and indirect short run cos
ts vary among the analyzed states. In the case of Maine, it is noteworthy
that its lack of both private and public competition and its small prisons
that cannot exploit economies of scale explain the state’s high costs and
great potential for savings. Indeed, additional competition among the sta
tes and private companies could be most beneficial. The extent of the savi
ngs including satisfying the statutory requirements did not change apprec
iably when just 25 percent avoidable indirect costs were employed. Only i
n the short run for mediumPsecurity prisons in Oklahoma and Arizona did th
e savings decline to P2.16 and P1 percent, respectively. However, the lon
g run savings for both these states matter and those savings were maintain
ed.
The following three factors led to lower costs of contract prisons. The
issues of short versus long run avoidable costs and unfunded pensions and
healthcare were usually ignored and led to greater savings for contract
ed prisons than typically found.
Short8 Versus Long8Term Costs The state legislatures enabled contracting
out in order to relieve overcrowding. In several states like Ohio, Flor
ida, Mississippi, and Kentucky, a related objective was to achieve savin
gs. The legislatures of these mandatoryPsavings states have determined
that the required savings were obtained, even though
they typically focused only on shortPterm costs.
In fact, the savings should reflect the avoidable costs to the state. Since
, in general, overcrowding, along with the aging of the state prison infra
structure, means that the only alternative is state construction or major
renovations, modernization, or repair, interest costs should be incorporat
ed as the avoidable costs for government, an issue recognized by the Legis
lative Analyst’s Office in California (2012B: 16). However, the states do
not report depreciation since they are not private entities.
Better data are available for the interest payments made on bonds floated
to build major infrastructures. Depreciation was estimated at $4.61 by t
he US BOP/GAO, and we incorporated that figure in all the states that did
not report depreciation. The Legislative Staff Report for Arizona determ
ined that depreciation was $9.30, indicating that the use of $4.61 is con
servative. This longPrun cost added to the savings of contracting out in
the range of 2P14 percentage points, with six of the 13 observations at te
n or more.
Unfunded Pensions and Healthcare Vera, 2012, collected data from the 40 st
ates that responded to its inquiry about the total cost of corrections. Ve
ra obtained results for all the states that we examined except for Mississi
ppi. The Vera study includes amounts for which the state is liable but did
not fully pay. It also includes shortPrun costs attributable to correctio
ns but which were not in the corrections’ budgets. Capital costs, which rel
ate to the long run and are not normally part of the corrections budget, we
re also enumerated. For our purpose, these are avoidable costs when states
contracts out prisoners. These unfunded pensions and retiree healthcare c
ontribute 1P13 percent of total long run costs with a mode of 4P5 percent.
Labor Costs In the long run, labor costs were in the range of 43P71 percent
of total costs. In general, contract prisons pay comparable wages but some
20
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what less in benefits. For example, Ohio private correctional officers are
paid $1 less per hour. In Oklahoma in 2012, the beginning base salary for
a correctional officer was
$2,153 per month at the Northeast Oklahoma Correctional Center. A compara
ble beginning private correctional officer at the Davis Correctional faci
lity earned $2,068 per month, 3.95 percent less than a public officer. Ou
r interviews with state DOC officials revealed that, on occasion, private
correctional officers were paid higher wages but lower pensions. The rat
ionale provided is that the young correctional officers are concerned mor
e about their current wages than distant pensions and retiree healthcare
benefits.
Private contractors typically offer workers matching contributions up to
five percent of their salaries for their 401k accounts. However, many wor
kers choose not to contribute their share and thus lose the employer’s con
tribution. Private and public correctional officers are drawn from the sam
e labor pool. Generally, the training is substantially the same, providin
g similar number of hours with a few course differences. See for example,
Arizona RFP, at http://www.azcorrections.gov/adc/divisions/adminservice
s/notice_rfp_1200001388.pdf.
In Ohio, for example, they attend the same training academy and, in anothe
r state, public correctional officers work part time in private facilitie
s. It appears that private contractors are able to hire correctional offi
cers of similar attributes to those hired by the state. Also, private cont
ractors are more flexible than state governments to reflect specific mark
et conditions and the specific preferences of employees. Private contrac
tors provide a benchmark for labor costs for state correctional employees.
In California where only community correctional facilities operate within t
he state, the wages and
benefits package in the correctional public sector are exceptionally high.
California has 30,000 unionized
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correctional officers and, each year, 130,000 candidates apply to become co
rrectional officers. This
excess demand for employment in public prisons is not surprising since the s
tarting minimum salary in
2008 was $3,774 per month, and some earn more than $73,000 a year. Californi
a State Auditor (2009:
49) reports that during fiscal year 2007P8, beginning correctional officers
were paid an average of
$50,739 excluding any overtime. The annual pension contribution by Califor
nia even for new officers was $12,000 for fiscal year 2009P10. This was $4,
000 more than other state employees received. The overwhelming excess supp
ly of applicants for correctional employment clearly suggests that the tot
al compensation package was well above these workers’ market values (CALAO
, 2008). A strong union and lack of competition within the state from priv
ate contractors contributed to the exceptionally high wages and benefits.
Maine, which again has no competition from private contractors and less ef
ficient, smaller sized facilities, also had relatively high labor costs.
We wish to stress that government sources were primary for this study. Als
o, when calculations were made, we were conservative (biased downwards) i
n the state costs. The long run savings of contracting out prisoners are a
ttributed, in declining importance, to the longPterm consideration of cost
s, the inclusion of unfunded pensions and retiree healthcare, and the low
er private costs of labor. We found no evidence that the lower costs are a
ssociated with possible lower performance of private prisons. Actually,
we encountered government evidence that the performance of PPP prisons was
, on occasion, higher than public prisons in Florida and Kentucky and comp
arable in the other examined states. An explanation for the at least comp
arable performance is the detailed contracts and the monitoring, includin
g onsite that touches upon all the performance measures.
Other possible explanations for the savings are the purchasing power and f
lexibility in purchasing of the private firms. The contracting firms buy i
n large quantities for various prisons and can take advantage of opportuni
ties that arise rather than be constrained by cumbersome state purchasing
regulations. Also, in operation, private firms have greater flexibility i
n employment, perhaps taking greater advantage than government in using pa
rtPtime workers (Interview with a Texas Department of Criminal Justice off
icial, October 26, 2012). Private firms, in some cases, enjoy greater flexi
bility in hiring, which saves time and resources. Also, private firms can
tailor their wages to specific labor market conditions, which is more diff
icult for public employers. For example, private correctional officers are
paid less in rural communities, which usually have lower cost of living t
han in metropolitan areas. The state cannot differentiate wages to the sam
e extent, and therefore overpays in rural areas or underpays in metropolit
an areas. State officials in our examined states provided these explanatio
ns.
Two additional explanations for the savings achieved by the contracting fir
ms are beyond the scope of this study. One relates to competition versus mo
nopoly, and the other is beyond the control of state governments. Several
of the interviews with state officials suggested significant competition a
mong the firms in responding to the request for bids to operate prisons. Th
e interviews and OPPAGA of Florida suggest that competition from private f
irms yield more efficient operation in public prisons. Blumstein et al. (2
22
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007) found that states with contract prisons within the state experienced g
reater savings for public prisons than states that either do not contract o
ur prisoners or contract outPofPstate. Even though contract prisons house l
ess than seven percent of all inmates, their competitive effect is strong.
The lack of such competition in government often leads to less efficient o
perations.
Texas provides a good example to the benefits of competition. Prices of pri
vately operated prisons increased from $37.48 per inmate per day in FY2010
to $39.13 in FY2011, and then declined to $37.97 in FY2012. Short run cos
ts for the prototype 1,000Pbed state facility over the same period varied fr
om $44.50 to $44.89, and then declined to $41.99 (Texas Legislative Budget
Board, 2013). It is typical in competitive industries that prices and cos
ts constantly vary. Indeed, in a threePyear period, we witness
fluctuations in private prices and state costs, which may indicate the effec
ts of competition.
Private prisons save money in many states
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
The table below provides both short and long run savings in the use of con
tract prisons. The long run savings for Arizona’s two prisons are 14.25 a
nd 22.34 percent; California had 32.20 and 58.61 percent savings for two
prisons; Kentucky’s savings for its four prisons ranged between 12.46 an
d 23.5 percent; Ohio saved 20.28 and 26.81 percent in 2012 and 2010, resp
ectively; Oklahoma saved on its four prisons
16.77 to 36.77 percent; Tennessee had 17.32 percent; and Texas had 44.95
percent. Maine, which does not utilize contract prisons, could have save
d 47.65 percent when below capacity and 49.38 percent if overcrowding ex
ists.
Private prisons in Florida reduced costs
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
Florida Some states require private prisons to achieve specified savings
to obtain and maintain their contracts while still satisfying performanc
e standards. For example, under Florida law a contractor must promise and
then achieve savings of at least seven percent over comparable public pri
sons. The Office of Program Policy Analysis and Government Accountability
(OPPAGA) of the Florida Legislature conducted
an analysis of four privately operated prison contracts and reported on Apr
il 20, 2010 that all four
contracts achieved the required savings and recommended their consideration
for renewal (OPPAGA,
2010A).
The privately operated Bay Correctional Facility had a per diem cost of $52
.73 compared to the comparable public prisons of $56.98 for savings of 7.5
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percent during the twoPyear study period. The privately operated Moore Ha
ven Correctional Facility had twoPyear savings of 12.5 percent, while the
contract Graceville Correctional Facility had savings of 22.1 percent for
the one year when a comparison could be made. Finally, the contract Gadsde
n Correctional Facility had twoPyear savings of 28.3 percent.
OPPAGA concluded that the contractors’ performance in dimensions other th
an costs was acceptable. Performance criteria included such security req
uirements as key control, perimeter cameras, and filling vacant positions
in a timely manner. Health services in particular were found to be well de
livered. It is also noteworthy to point out that contractor operated pris
ons provided more substance abuse and education programs, according to OP
PAGA, than the comparable public prisons, so much so that costs had to be
added to the public prisons for appropriate comparison.
OPPAGA also noted that a major reason for the cost advantage of private p
risons is the higher retirement expenses for public prison employees tha
n those provided by private contractors. Public correction officers hav
e an amount equal to about 21 percent of their salaries contributed to a
retirement fund, whereas private correctional officers receive matching
contributions to their 401K funds of up to five percent of their salarie
s. Other reasons for the cost advantage of private prisons include highe
r costs for providing educational and substance abuse programs at public
facilities and a higher allocation of administrative costs.
Private prisons have generated significant savings in Kentucky
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
Kentucky'
Overcrowding in state prisons during the 1970s and 1980s led Kentucky to u
se private prisons. The first contract for use of private prisons occurre
d in 1986. The state also used county jails to house inmates.
The number of inmates in private facilities increased from an average of 15,
164 in fiscal year 2000 to
22,553 in fiscal year 2009 (KLRC, 2009). As we found in our analysis, th
e long run savings realized by Kentucky through PPP prisons has been si
gnificant, ranging from 12.46 and 23.50 percent.
In fiscal year 2009, 54 percent of inmates were in state prisons, 34 percen
t were confined in local and regional jails, 5.5 percent were in three cont
ract prisons, and the remaining 6 percent were in halfway houses or home cu
stody. A rough indication of relative cost is the fact that state prisons h
eld 54 percent of the inmates and accounted for 64 percent of the DOC’s cos
t while contract prisons with 5.5 percent of inmates cost the state 5.3 pe
rcent.
Kentucky statutes and/or contract terms require the private prisons to ach
ieve accreditation by the American Correctional Association. The contract
ed prisons must achieve savings of at least ten percent compared to compar
able state institutions and must provide similar education, training, and
substance abuse programs as state facilities. The contracts have required
that Kentucky guarantee and pay for minimum numbers of inmates. For exampl
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e, at the Otter Creek Correctional Center, the fiscal year 2009 contract r
equired that the state pay for a minimum of 90 percent of the contracted be
ds or 429 beds of the 476 contracted beds. This means that the extra cost i
s zero for housing an inmate in a contracted prison when the state occupan
cy is below the guaranteed rate. Moreover, in the contracted Lee Adjustmen
t Center, inmates from Vermont were housed to fill beds not contracted to K
entucky.
In 2013, the Kentucky Department of Corrections provided overall prison
per diem costs for contract and state prisons. The public prison cost fo
r FY2012 was $60.14 compared with $46.80 for contract prisons. In any e
vent, the savings from contract prisons were about $13 per inmate per da
y or 22 percent. This is not a comparison of comparable facilities.
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Maine would save money if it utilized private prisons
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
Maine Maine, which does not utilize private prisons, has only 2,038 inmate
s. The state, however, maintains detailed data for almost all categories o
f pubic costs. Interestingly, the short run prison costs are
$117.36 per inmate and the long run prison costs per inmate are $127.95, includ
ing an imputed
depreciation figure of $4.61 from the GAO/BOP. Maine’s costs for both short an
d long run are double most of the other states examined. The reasons could be
lack of economies of scale and high costs emanating from lack of competition
provided by private prisons. Maine has four adult prisons, housing an average
daily census in 2011 of 141, 147, 658, and 1,008 (Maine, Office of Program Ev
aluation and Government Accountability, 2011: 2). Thus, only one prison is ef
ficient in size, while the others suffer from diseconomies of scale with high
er cost for similar services of at least 15 percent. The short run cost per in
mate per day in the other examined states is approximately $50. Adding the 15
percent cost penalty yields $57.50, while the additional cost attributed to l
ack of competitive pressure provided by the private prisons imposes on Maine
up to $60 per day.
Maine’s neighboring state, Vermont, contracts out prisoners to prisons in Ar
izona, Kentucky, and Massachusetts for $65.75 compared to $137.00 for housin
g inmates in its own state prisons. Vermont’s inPstate costs are similar to t
hose of Maine (Picard, 2011). Although Maine does not contract out inmates,
it seems important to show what Maine could save if it contracted out at its n
eighbor Vermont’s prices. In 2011, Maine was almost at capacity. Thus, if Ma
ine chose to contract out existing inmates then the avoidable costs would be
merely short run. The savings would be $69.93 per inmate per day or 51.54 per
cent. However, given the fact that Maine is already operating near capacity
(capacity is considered in the range of 95P98 percent), savings resulting fro
m contracting out of additional inmates would be $69.12 per inmate per day or
49.38 percent. These would be long run savings because additional inmates w
ould require public capital expansion.
Private prisons save money in Ohio
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
Ohio Ohio began the process of private participation in correctional insti
tutions in March 1998 when the state legislature passed a law mandating th
at the Ohio Department of Rehabilitation and Corrections (ODRC) engage pri
vate firms to operate and manage the North Coast Correctional Treatment Fac
ility (NCCTF), a
552Pinmate, minimumPsecurity substance abuse treatment facility for adult males
, and the Lake Erie
Correctional Institution (LECI), a 1,380Pinmate, minimum/mediumPsecurity
facility (material supplied by ODRC).
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The initial contractor for the NCCTF, Civigenics, held the contract from Se
ptember 1999 until replaced by MTC in fiscal year 2002. MTC agreed to a per
diem of $62.87 for fiscal years 2002 and 2003, and Ohio reported savings c
ompared to state operation of 5.02 and 5.92 percent, respectively, for the
two years. Savings for subsequent years were about 17 percent, attributed
to cost containment efforts by MTC. State operations would have cost $79.7
7 per inmate per day, according to Ohio officials.
More recent contracts provided additional savings for inmate populations i
n excess of 552 up to the maximum of 612 inmates. The 2006 fiscal year rate
, for example, was $42 instead of the $65.08 rate for the first 452 inmates
. This is likely a result of economies of scale that extend to inmate popul
ations of at least 1,000 in minimum/medium security prisons discussed els
ewhere in this report. Moreover, subsequent contracts after 2006 held annu
al increases below the Consumer Price Index (CPI), and the ODRC reported s
avings to be about 16 percent.
The contracts required MTC to maintain staffing at or above a certain level
and provide a full range of education, health, rehabilitation, and traini
ng programs. The facility also had a Community Advisory Board and communit
y volunteers, which help inmates and assured community member integration.
The facility scored 100 percent on ACA accreditation standards.
It is important to note how Ohio determined some of its state cost data, which are compared with private prices.
The ODRC uses a sophisticated model that includes program specific costs (ODRC, 2007). State costs are estimat
ed based upon local conditions, and the experience of similar ODRC facilities adjusted for inflation. ODRC indirec
t costs are based on recent departmental reports. Private prisons in Oklahoma are cheaper
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
A 2007 study of Oklahoma public and contractor operated prisons conducted fo
r the state legislature concluded that private prisons in fiscal year 2006 w
ere less expensive than the most comparable public facilities (MGT, 2007: 3P
21). Specifically, the per diems were $47.14 compared to $51.94. The report
noted the difficulty of determining comparable facilities. It also stated th
at the cost difference was in part attributable to the older age of the publi
c prisons, which added to their security problems, requiring higher staffing
levels than the newer contractor operated prisons. The study also noted that
contractor operator prisons could be built quicker because the leading cont
ractors have greater experience and expertise in building prisons than almo
st all states.
The contracts also were shown to provide substantial flexib
ility for Oklahoma. The state had the option in some of the contracts to buy
the contractor operated facility “at fair market value.” Under the contracts
, Oklahoma can reserve beds for up to 15 days, after which it has to pay for t
he beds even if it does not use them (MGT, 2007: 3P30).
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A2: Savings Just Due to Wage Differences
Most of the savings is not due to wage differences
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
Salaries of correctional officers in public and private prisons are compar
able. For example, beginning public correctional officers in 2012 earned
$24,605, while private officers earned $24,190, a 1.7 percent difference.
The total long run savings by contracting out mediumPsecurity prisoners we
re $8.63 and
$11.37 per inmate per day for the two prisons, which results mostly from ca
pital savings. The two maximumPsecurity prisons achieved savings of $31.58
, and $32.92 per inmate per day. Additional savings arose from avoided una
ccounted pensions and healthcare costs of $1.29. The cost advantage of PPP
facilities likely arises from their greater productivity and possibly gre
ater purchasing power. This coincides with the 15 percent greater producti
vity of private prisons experienced in Ohio. Thus, the long run savings fr
om contracting out to private prisons is marginally attributed to wage diff
erences.
Cost!Analysis!of!Public!and!Contractor8Operated!Pris
ons!–!April!29,!2013!
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Quality of Prison
Existence of private prisons in the market improves the quality improves the quality of
public prisons
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
At least equal performance to state prisons is required for contracting o
ut. Indeed, the American Correctional Association established standards
for prison performance, which the contract prisons generally met. Furth
er, interviews with state DOCs reported that their contracts mandate per
formance levels, and DOCs closely monitor adherence to the contract req
uirements. Penalties can be and are imposed for performance violations.
In Florida, contractors performed above the state level in training and
educating inmates, which could be attributed to competition among contr
actors and the desire for contract renewal.
A major finding from the data and the interviews is that competition yields
savings and better performance.
The economics of Industrial organization demonstrates the important benefit
s derived from the presence of even a small competitor in an otherwise mono
polistic market. Even though private contractors comprise less than seven
percent of the industry, they have generated substantial competitive benef
its. The benefits emanate from two sources. As more contractors compete, th
e prices are lower, and the performance is better. Likewise, when private
prisons become an available option, efforts are made by public prison mana
gers to lower costs, and demands by employees are constrained, since public
employees realize that the legislature might favor private corrections as
a more cost effective option. Further, the greater the competition, the mo
re managerial and technological innovations are introduced in both the pub
lic and private segments of the industry. Interestingly, we found that in s
everal states where both public and private contract prisons operate, ther
e was cooperation, mutual learning of new technologies, joint training, an
d adoption of efficient management.
Model for Estimating the State’s Avoidable Costs
This study determines whether contracting out prisoners or prisons reduces
state costs and is beneficial
to the welfare of its citizens. Cost savings are usually required in order f
or the state to contract out
inmates. When the nonPmonetary performance of the prisons is incorporated i
nto the analysis, it becomes more comprehensive, reflecting overall net be
nefits to the state’s citizens. The cost savings are all expressed in mone
tary terms. However, the performance will be captured in more general terms
since quantifiable data are sometimes not available. This study relies on
government sources for most data. We imputed data, again relying on govern
ment sources, when direct data were missing. The source Appendix provides
information about where the data were obtained for each of the variables (e
ntries) in Table 1.
Cost!Analysis!of!Public!and!Contractor8Operated!Pris
ons!–!April!29,!2013!
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Overcrowding
Many public prisons are overcrowded
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
Inmates are transferred to PPP prisons, sometimes to relieve overcrowding a
s a result of court rulings. An appellate court found that California in 2
008 was operating at 188 percent of its designed capacity, jeopardizing th
e health and safety of the inmates. California has been ordered to reduce i
ts capacity utilization to 137.5 percent by December 2013. California also
lost control of the healthcare delivery in its prisons to a Federal Recei
ver after it was determined that the state was not delivering a Constituti
onal level of inmate medical care because of the severe overcrowding in its
prisons. Excessive overcrowding exists elsewhere, as well. Ohio, for exam
ple, in 2012 had prisons operating at 128 percent of their capacity.
Overcrowding creates security problems
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
There is another infeasible alternative. The state could house inmates in ov
ercrowded conditions, which spreads the fixed costs over a larger number of
prisoners, lowering costs per inmate. However, overcrowding significantly
reduces performance, including creating greater security problems, lowerin
g correctional officer and inmate safety, and contributing to higher wages
as the job becomes increasingly dangerous and difficult. Further, this is a
nonPviable alternative since the courts are likely to intervene.
Overcrowding leads to prisoner death
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
In spite of achieved cost savings from overcrowding, the quality of servi
ce and the level of security are substantially reduced. In the case of Ca
lifornia, the courts have concluded that security problems and deficient
medical care resulting from overcrowding led to unwarranted deaths and s
uffering of the inmate population. Often, the remedies mandated by the co
urts far outstrip the perceived savings achieved from operating overcrow
ding prisons. See the discussion of judicial decision in the case of Cali
fornia below. Further, cost comparisons would tend to be biased against p
rivate facilities if their utilization rates were lower than public faci
lities.
Overcrowding reduces health care delivery
Cost!Analysis!of!Public!and!Contractor8Operated!Pris
ons!–!April!29,!2013!
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Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
The overcrowding in California prisons led to problems in delivering adequa
te healthcare. In April 2001, Plata v Brown plaintiffs claimed in a class a
ction suit that California provided such inadequate medical care that it vi
olated the cruel and unusual punishment amendment to the U.S. Constitution
(California Legislative Analyst’s Office (LAO), 2012A). The court held tha
t the system was “broken beyond repair” and that death and suffering had re
sulted. California in 2002 agreed to improve the healthcare situation. Ho
wever, in 2006 the court held that insufficient progress had been made, dete
rmining that overcrowding led to security restrictions on inmate movements
that prevented inmates from receiving appropriate and timely care. Also in
2006, the courts placed a federal receiver in control of inmate medical ca
re, taking the state out of the management of the prison's healthcare system
. That receiver remains in place today.
Cost!Analysis!of!Public!and!Contractor8Operated!Pris
ons!–!April!29,!2013!
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Flexibility in Prison Management
Private prisons enable the flexible management of prison space
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
Use of private prisons increases the flexibility of government corrections
in a variety of ways. Demand for prison cells changes over time. When deman
d is high, public prisons lack cells, and overcrowding results. The courts
usually require timely alleviation in such cases as California in 2013. In
the absence of contract prisons, the states need to build expensive new fac
ilities while their borrowing capacity is low. On the other hand, the numb
er of inmates is expected to diminish for such reasons as the declining coh
ort of young males, reduction in the use of “three strikes” sentencing, easi
ng of drug laws as already occurred in the states of Washington and Colorad
o, and a possible reduction in recidivism. Prisons could then become underP
occupied or even vacant, and it is difficult and expensive to transform the
m for other uses. Further, much of the expensive surveillance features wil
l have to be abandoned. For example, the Central Unit state prison in Sugar
Land, Texas lies vacant. Florida. Texas, New York, and Michigan have seen
a decline in the number of prisoners and have already closed prisons. The on
ly three states that have experienced a significant increase in prisoners
are Kentucky, Oklahoma, and Tennessee. In fact, 35 adult U.S. correctiona
l facilities have closed between 2011 and 2013 (Stumpf, 2013). Thus, contr
act prisons play the role of an equilibrating mechanism for equating supply
and demand for cells. This flexibility translates into large savings for
state governments.
Cost!Analysis!of!Public!and!Contractor8Operated!Pris
ons!–!April!29,!2013!
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Faster Prison Construction
Private prison construction is more efficient than contracted prison construction
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
Private prison construction yields savings in both time and costs compared
to state governments contracting out the construction. Cumbersome proced
ures in obtaining bids and selecting the winning contractor, possible rul
es for the use of unionized labor, and the inability to take advantage of b
uying power make the cost higher and often hinder timely completion. A pri
vate contractor built a 3,000Pbed medium security prison for California i
n Arizona and began housing its first inmate just 15 months after beginnin
g construction. Because of the regulatory requirements in California, tha
t process would have taken much longer. These issues are discussed more fu
lly in the individual state sections.
Private prisons increase tax revenues
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
Private prisons provide additional benefits to state governments besides
providing savings from their operation. Private prisons pay income and pr
operty taxes while state facilities do not. In Arizona, for example, the
economic consulting firm of Elliot Pollack and Company (2010: 1) determin
ed that one private contractor paid over $26 million in taxes to the state
and local governments in 2009. Such state or local revenues could be use
d to reduce taxes or to finance other government functions. These taxes co
uld increase the state income and employment by the familiar multiplier ef
fect. We did not quantify such benefits, but their existence should be re
cognized.
Cost!Analysis!of!Public!and!Contractor8Operated!Pris
ons!–!April!29,!2013!
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Stefan Bauschard
For Profit Prisons PF Release
Cost!Analysis!of!Public!and!Contractor8Operated!Pris
ons!–!April!29,!2013!
Page!34!
Stefan Bauschard
For Profit Prisons PF Release
Local Jobs
Private prisons support local jobs in Texas
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
Except for two public prisons in Houston and Dallas the remaining public an
d private prisons are located in rural areas or smaller cities, enhancing t
he local economy. Positions in these prisons are typically filled by local
residents, providing jobs for the local community. ContractorPoperated pris
ons purchase other local services, all contributing to these areas with th
e usual multiplier effect.
Cost!Analysis!of!Public!and!Contractor8Operated!Pris
ons!–!April!29,!2013!
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Stefan Bauschard
For Profit Prisons PF Release
Improved Public Prisons
Existence of private prisons induces efficiency in public prisons
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
Florida’s evaluation of private prisons has yielded some important eviden
ce about performance. Specifically, OPPAGA’s Information Brief Comparin
g Cost of Public and Private Prisons of March 1997 noted that per diem pu
blic prisons costs rose less than 1.5 percent annually between FYs 1992P93
and
1995P96. OPPAGA noted that competition induced by the privatization of some
prisons might have produced greater efficiency in the public prison syste
m (p. 6). In a study of private prisons in Florida including a comparison o
f other state systems prepared for the Florida Department of Management Se
rvices (MGT of America, 006: 33), the three lowest per diem inmate costs in
cluded Texas, Georgia and Florida –
all states with competing private prisons. The authors suggested that use
of contract prisons lowered costs of statePoperated prisons, as well. This
finding is consistent with a later Vanderbilt University study conducted
on all 50 states, which concluded that states with private prisons experien
ced 2.64P3.15 percent lower growth in public prison costs. These savings ha
d a twoPyear lag. The study concluded that learning or possibly competitio
n cause the public savings (Blumstein et al,
2007).
Cost!Analysis!of!Public!and!Contractor8Operated!Pris
ons!–!April!29,!2013!
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Stefan Bauschard
For Profit Prisons PF Release
Rehabilitation/Recidivism
Private prisons provide training to reduce the likelihood of recidivism
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
The Florida Chamber of Commerce reported in 2012 that the number of inmate
s per staff to provide rehabilitation services was 1 per 38 in private pr
isons and 1 per 272 in public prisons in DOC Region IV. In fact, 79.3 per
cent of inmates in the private correctional facilities participated in su
ch educational, vocational, and life skill training compared to 21.3 perc
ent in public facilities (Florida Chamber of Commerce, 2012). At a minim
um, these data show that private facilities can and do provide training to
reduce the likelihood of recidivism.
Cost!Analysis!of!Public!and!Contractor8Operated!Pris
ons!–!April!29,!2013!
Page!37!
Stefan Bauschard
For Profit Prisons PF Release
Better Facilities
Private prisons are built faster and are superior facilities
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
The contract prison was also built quicker than the public prison. The publ
ic prison was authorized by the legislature in 2006 but was not completed u
ntil October 2009, whereas the private prison was authorized in 2008 and co
mpleted in July 2010. In general, OPPAGA reported that private prisons are
built in 18 to 24 months compared to 36 months for public prisons. The priva
te firms are not burdened by the cumbersome public sector requirements invo
lved in selection of contractors, subcontractors, and the process of selec
ting site appraisers. There are also important differences in the construct
ion itself of the prison. Blackwater, the private prison, installed air co
nditioning, which obviously contributes to more comfortable living and wor
king conditions and may alleviate inmate tensions in hot weather. The Suwa
nee public prison installed a less costly dehumidification system. In addit
ion, the public prison employs a centrally located guard tower to watch ove
r inmates, whereas the private prison employs cameras, reflecting the priv
ate prison’s greater reliance on technology. Finally, the private prison do
es not have a central dining room but provides food in the living quarters
of the inmates. The private prison thereby reduces cost of construction, en
hances inmate control, and may reduce staffing requirements (OPPAGA, 2010B
).
Private prisons provide Oklahoma flexibility in
prison management
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
Oklahoma uses PPP prisons for population management. Instead of building
new prisons, Oklahoma contracts with private prisons, providing import
ant flexibility so that new prisons are not needed. If capacity utilizat
ion is low, fewer inmates are sent to private prisons. Clearly, when comp
aring private and public costs, the public costs should incorporate all
the long run capital costs.
Cost!Analysis!of!Public!and!Contractor8Operated!Pris
ons!–!April!29,!2013!
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Stefan Bauschard
For Profit Prisons PF Release
Generally Superior Prisons
Private prisons in Texas provide more services
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
Our interviews have clearly shown the benefits of the competition among the
private contractors. The private companies cannot go below the public per
formance standards detailed in the contracts. However, evidence suggests t
hat competition often yields higher performance quality in order to mainta
in longPterm contracts. In addition to competition in pricing, Texas gains
additional concessions through individual negotiations that follow the sel
ection of the contractors. Thus, the states and inmates gain more than mere
ly the statutory lower prices in the contract negotiations.
Private prisons in Texas are more secure
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
In addition to the actual savings, we learned from our interviews with off
icials of the Texas Department of Criminal Justice (TDCJ) that contractor
operated prisons PP to a greater extent than state facilities PP have employ
ed electronic tracking systems instead of the manual key board system. Ele
ctronic tracking systems provide greater security since access requires p
ersonal identification. In addition, some private prisons exceed the requ
ired standard eightPtimesPaPday count of prisoners. In terms of annual refr
esher training for correction officers, some private prisons train 56 hour
s annually instead of the standard 40 hours for public prisons. Private an
d public wardens together attend the same monthly meeting held by the six
regional TDCJ directors. This clearly indicates the strong partnership and
cooperation between the public and private sectors.
Cost!Analysis!of!Public!and!Contractor8Operated!Pris
ons!–!April!29,!2013!
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Easier to Sue Private Prisons
Suing federal prisons is difficult due to sovereign immunity
Alexander Volokh, 2013, Associate Professor, Emory Law School, Akron Law Review, v. 46, SYMPOSIUM: INSIDE
AMERICA'S CRIMINAL JUSTICE SYSTEM: THE SUPREME COURT ON THE RIGHTS OF THE ACCUSED
AND THE INCARCERATED: KEYNOTE ARTICLE: THE MODEST EFFECT OF MINNECI v. POLLARD ON
INMATE LITIGANTS, p. 299-302
A. Suing Federal Prisons
Suing public prisons on a tort theory is difficult, primarily due to sovereign immunity.
The federal government has partially waived its sovereign immunity in the Federal Tort Claims Act (FTCA), which
makes the federal government liable for tort claims "in the same manner and to the same extent as a private individual
under like circumstances," incorporating the law of the place where the allegedly wrongful act occurred. The FTCA
gives federal district courts exclusive jurisdiction over tort suits against federal employees acting within the scope of
their employment. Once the Attorney General certifies that the employee was acting within the scope of his
employment, the claim (if brought in a state court) is removed to a federal district court, and the United States is
substituted as the defendant.
So far, so good for the tort claimant. Indeed, in United States v. Muniz, the Supreme Court explicitly, and
unanimously, held that the FTCA was available to federal prisoners. But any prison-based lawsuit against the federal
government is likely to run into a few serious problems, chief among which are exceptions to the FTCA's waiver of
sovereign immunity--that is, no-liability (and, indeed, no-jurisdiction) rules. These are features of the FTCA framework
according to the Muniz Court, statutory protections for the government that prevent prisoner suits from "seriously
handicap[ping] efficient government operations." I'll mention two of these exceptions here: the detained property
exception and the discretionary function exception.
First, the FTCA doesn't waive sovereign immunity if the claim arises "in respect of . . . the detention of . . .
property by . . . any . . . law enforcement officer." The term "law enforcement officer" includes Bureau of Prisons
(BOP) officers n94 and the exception is interpreted broadly to include both negligent and intentional conduct. So, if, on
being transferred from one federal prison to another, you find, as did the luckless Abdus-Shahid M.S. Ali, that the BOP
has somehow misplaced your Qur'an and prayer rug, you're out of luck.
Second, there's the FTCA exception for claims "based upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of a federal agency or an employee of the Government"; sovereign
immunity is retained even if the discretion is abused. This exception is limited to acts where some discretion is
permitted (i.e., non-ministerial acts) and where the type of decision is "susceptible to policy analysis."
Take, for instance, the case of Faustino Calderon, a federal prison inmate in Oxford, Wisconsin who was attacked
by fellow inmate Luis Perez for informing on one of Perez's relatives. Though Calderon had told four BOP officials of
Perez's threats, no one at the prison took any steps to protect him. But the BOP's decision not to segregate Calderon and
Perez was based on a consideration of various factors listed in BOP regulations, "balancing the need to provide inmate
security with the rights of the inmates to circulate and socialize within the prison"; and so, Calderon lost his claim under
the discretionary function exception. Obviously, whether the BOP had considered the factors correctly or negligently, or
whether the factors were even correct, played no role in the resolution of the case.
The discretionary function can even preclude liability where it would otherwise be explicitly granted, as where a
law enforcement officer commits an intentional tort like battery. What if a battery by a law enforcement officer is also
the result of an exercise of discretion? Does the law enforcement proviso to the assault-and-battery exception govern (in
which case we would have liability), or is liability foreclosed by the discretionary function exemption? The circuits
differ: in the Fifth and Eleventh Circuits, the proviso governs and liability can attach, while five other circuits--the
Second, Third, Fourth, Ninth, and D.C. Circuits--have gone the other way.
Finally, the FTCA provides an additional handful of procedural hurdles. For instance, plaintiffs can't get a jury trial,
nor can they get pre-judgment interest or punitive damages.
B. Suing State Prisons
The FTCA is a waiver of the federal government's sovereign immunity, so naturally it applies only to tort suits
against the federal government or its employees or agencies. If, as a state inmate, you want to bring a tort suit against
state prison employees, a state prison, or a state government, the sovereign immunity of the United States doesn't come
into play and so the foregoing FTCA-based limitations are irrelevant. State sovereign immunity, though, is as great a bar
here as federal immunity is for federal inmates. In fact, "[a]s a general matter, state waivers of immunity are narrower
than the federal government's."
Perhaps most harmful for the prisoner tort plaintiff, the FTCA's discretionary function exception has an analogue in
state immunity doctrines for discretionary conduct. Some states provide for a discretionary function exception by
statute; others do so by judicial decision. Washington, for instance, alone among the states, makes governmental
defendants "liable in tort on the same terms as private tortfeasors," but even there the Washington Supreme Court has
read a discretionary exception into the statute." The language from the Washington decision captures the sort of
considerations involved:
(1)Does the challenged act, omission, or decision necessarily involve a basic governmental policy,
program, or objective?
(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that
policy, program, or objective as opposed to one which would not change the course or direction of the
policy, program, or objective?
(3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and
expertise on the part of the governmental agency involved?
(4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful
authority and duty to do or make the challenged act, omission, or decision?
If these preliminary questions can be clearly and unequivocally answered in the affirmative, then the
challenged act, omission, or decision can, with a reasonable degree of assurance, be classified as a
discretionary governmental process and nontortious, regardless of its unwisdom.
The Washington Supreme Court later clarified that, to benefit from the discretionary exemption, the state must
show that an actual, conscious balancing of risks actually took place."
Moreover, just as in FTC A law, particular instances of carrying out a discretionary policy may be held to be
ministerial and therefore not immune from liability--the doctrine is often called the "planning-operational test,"
indicating that (discretionary) planning decisions are generally immune from liability while (non-discretionary)
operational decisions aren't. For instance, when Florida prisoner Thomas Dunagan was attacked by a fellow inmate who
strangled him into unconsciousness and drove ballpoint pens into his eyes, a county sheriff was held liable for not
following policies regarding opening and closing of cell doors --even if there might have been no liability for failing to
adopt such a policy in the first place.
Still--again, just as in FTCA law--this discretionary doctrine can bar recovery for many prisoner plaintiffs. Thus,
when an Indiana juvenile inmate was sexually assaulted by other juvenile inmates and sued the county for not allocating
sufficient resources to security, it was unclear whether the county that ran the juvenile detention center had actually
engaged in a policy analysis in deciding on resource allocation. What was clear was that if further factual development
revealed that a policy analysis had been done, the county would be immune from liability.
In addition, statutes in many states further limit prisoner tort plaintiffs' prospects. Every state is different and has its
own exclusions, so let me provide a small, somewhat arbitrary sample of such laws, some of which relate to sovereign
immunity (the immunity of the state), some of which relate to official immunity (the personal immunity of the
employee), and some of which relate to both:
. In California, with some exceptions, "neither a public entity nor a public employee is liable for failure
to provide a prison, jail or penal or correctional facility or, if such facility is provided, for failure to
provide sufficient equipment, personnel or facilities therein." Similar provisions appear in the laws of
several states; Mississippi law is barely more generous, requiring only that "reasonable use of available
appropriations ha[ve] been made to provide such personnel or facilities."
. Oklahoma goes beyond California and also excludes governmental liability arising out of the "operation
or maintenance" of prisons, jails, or juvenile facilities; West Virginia is similar. Ohio--after having
generally immunized political subdivisions--then specifically makes them liable for injury "caused by the
negligence of their employees and that occurs within the grounds of, and is due to physical defects within
or on the grounds of, buildings that are used in connection with the performance of a governmental
function"; but specifically excluded from this extension of liability are jails and other detention facilities.
. Utah simply states that immunity of governmental entities is not waived if the injury arises out of "the
incarceration of any person in any state prison, county or city jail, or other place of legal confinement";
New York has a similar statute covering employees; Mississippi has a statute covering both. South
Carolina immunizes governmental entities in a similarly blanket way, though it makes an exception for
gross negligence.
. Arizona excludes governmental and employee liability for prisoner-on-prisoner violence, as long as
there was no intentional or grossly negligent conduct by the state employee; California also immunizes
public entities (though not public employees) for such violence. Several states also exclude liability for
injuries caused by escaped or escaping prisoners.
. Illinois specifically excludes both governmental and employee liability "for injury proximately caused
by the failure of the employee to furnish or obtain medical care," though it does impose liability on an
employee who, "acting within the scope of his employment, knows from his observation of conditions
that the prisoner is in need of immediate medical care and, through willful and wanton conduct, fails to
take reasonable action to summon medical care."
Lawrence Rosenthal summarizes: "thirty-three states recognize discretionary-function immunity, twenty-three
recognize immunity for injuries caused by reliance on statutes or other enactments, . . . seventeen immunize specified
intentional torts of public employees, and forty states confer immunity from punitive damages." "In addition, forty-two
states limit the damages recoverable from a governmental defendant or a public employee." Of course, all these
numbers are below fifty, which means that some other states don't have such immunity; but the fact remains that in
many states, whether by common law or by statute, a state inmate suing his prison may be in just as bad a position as his
federal counterpart.
Easier for inmates to sue private prisons
Alexander Volokh, 2013, Associate Professor, Emory Law School, Akron Law Review, v. 46, SYMPOSIUM: INSIDE
AMERICA'S CRIMINAL JUSTICE SYSTEM: THE SUPREME COURT ON THE RIGHTS OF THE ACCUSED
AND THE INCARCERATED: KEYNOTE ARTICLE: THE MODEST EFFECT OF MINNECI v. POLLARD ON
INMATE LITIGANTS, p. 305-6
A Suing Federal or State Governments Themselves
Bottom line: good luck if you want to bring a tort claim against a private prison, whether state or federal. But when
it comes to suing private prisons, several of these limitations are entirely absent.
Of course, for federal private-prison inmates, suits against the United States directly are out. The FTCA waives
sovereign immunity only for acts of employees of the government. Government employees are defined to include
(among others) officers, employees, and persons working on behalf of "any federal agency," and "federal agency," in
turn, specifically excludes contractors.
Thus, when federal prisoner Reagan Logue hanged himself in a county jail awaiting trial, Logue's parents were
unable to sue the United States for the negligence of the jail employees who failed to keep him under surveillance. The
FTCA, the Supreme Court held, incorporates the common-law distinction between employees and contractors based on
the principal's "authority . . . to control the physical conduct of the contractor in the performance of the contract," and
that authority was lacking as between the federal government and the county officials. Nor could the county officials be
characterized as "acting on behalf of a federal agency in an official capacity"; if they could, so could most contractors,
which would make the explicit exclusion of contractors in the definition of "federal agency" kind of pointless.
What was true in Logue for local officials is also true for people and corporations that are more conventionally
thought of as contractors. The United States is liable neither for the negligence of its independent-contractor physicians
nor for that of private prison companies contracting with the federal government. Thus, if you're like Vernice Garvin, an
inmate at the Northeast Ohio Correctional Center in Youngstown, Ohio, trying to hold the United States liable because
he was negligently housed with an inmate with a staph infection, you lose: NEOCC is operated by the Corrections
Corporation of America, a federal contractor.
Much the same is true for state private-prison inmates: state tort claims acts, the state analogues of the FTCA, also
waive state sovereign immunity for the acts of employees, not contractors. n149 As a result, suing the state directly
typically seems to be out.
B. Suing Prison Firms: The Common Law
But if suits against the United States under the FTCA by federal inmates are out, suits against the companies
themselves under ordinary tort law aren't--whether for federal or state inmates. In Correctional Services Corp. v.
Malesko, John Malesko sued the corporation running the community correction center in which he was housed,
charging that the corporation and some of its employees were "negligent in failing to obtain requisite medication for
[his] condition and were further negligent by refusing [him] the use of the elevator." Because he was a federal inmate,
he brought his claim under Bivens. The Supreme Court denied the Bivens claim primarily on a no-entity-liability theory
(foreshadowed in the public context by FDIC v. Meyer), but it was also quick to point out his alternative remedies:
[A]lternative remedies are at least as great, and in many respects greater, than anything that could be had
under Bivens. For example, federal prisoners in private facilities enjoy a parallel tort remedy that is
unavailable to prisoners housed in Government facilities. This case demonstrates as much, since
respondent's complaint in the District Court arguably alleged no more than a quintessential claim of
negligence. . . . [T]he heightened "deliberate indifference" standard of Eighth Amendment liability would
make it considerably more difficult for respondent to prevail than on a theory of ordinary negligence.
The Malesko dissent denied that the existence of alternative remedies should doom a Bivens claim, but didn't deny
that these attractive alternative remedies existed.
These same considerations were on display in Minneci itself, where the Court finally said what one could have
guessed from Malesko: Bivens relief is not only unavailable against a corporation but is also not necessarily available
even against an individual in the private-prison Eighth-Amendment setting.
As I mentioned above, Richard Lee Pollard complained of being mistreated by employees of the federal private
prison in which he was housed; allegedly he was forced to wear very painful restraints and was deprived of therapy,
hygienic care, and sufficient medicine. The Court wrote, sensibly enough, that these claims are within the core of state
tort law, including in California, where this claim arose. The Fourth Circuit commented similarly on Ricky Lee Holly's
claim of inadequate medical care, pointing to North Carolina law; and the Tenth Circuit (in a short-lived opinion)
likewise noted that Kansas law "gives rise to a negligence claim" for Cornelius Peoples's claim that his jailors failed to
protect him from an attack by gang members.
A recent California case cited by the Supreme Court illustrates the different treatment of public and private actors.
Denisha Lawson was a California prisoner in a community-based correctional facility operated by Center Point, Inc.,
where she lived with her infant daughter Esperanza. Lawson sued the state and its employees, and Center Point and its
employees, for the physical injury that Esperanza experienced, and the emotional distress that she herself experienced,
when the defendants failed to get medical treatment for Esperanza's respiratory infection. Esperanza wasn't a prisoner,
so let's just focus on Denisha Lawson's own emotional distress claim. Her claim was dismissed as to the state and its
employees based on concepts of governmental immunity, as discussed above. But as to Center Point and its employees,
the story was quite different:
The Petition cites no authority, and we are aware of none, that extends the governmental immunity set
forth in the Tort Claims Act to a private entity working under contract for the State . . . . Accordingly, we
conclude that Center Point is not a "public entity" and thus is not entitled to claim the immunity set forth
in the Tort Claims Act.
Nor is this just a California rule. The Restatement (Second) of Torts provides that "[o]ne who is required by law to
take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal
opportunities for protection" has a duty "(a) to protect them against unreasonable risk of physical harm, and (b) to give
them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be
cared for by others." Jailors are also under a duty to reasonably control third persons to prevent them from harming their
charges. An illustration shows jailors' general duty of care--which would apply just as well to public jailors but for the
immunity doctrines discussed above:
A is imprisoned in a jail, of which B is the jailor. A suffers an attack of appendicitis, and cries for
medical assistance. B docs nothing to obtain it for three days, as a result of which A's illness is
aggravated in a manner which proper medical attention would have avoided. B is subject to liability to A
for the aggravation of his illness.
Such duties exist in all states that have federal prisons.
This is not to say that state remedies are always the same as what one might get under Bivens. Most obviously, as
I've noted, state remedies are more attractive because the general negligence standard is more plaintiff-friendly than the
"deliberate indifference" required under the Eighth Amendment and because tort law's respondeat superior doctrine is
unavailable under Bivens. On the other hand, the determination of whether the defendant was negligent will inevitably
be colored by the realities of prison life and the necessity of keeping discipline; and inmates may not always make the
most sympathetic plaintiffs (though private prison companies may also be unpopular). Moreover, tort-reform measures
can sometimes make state remedies less attractive: the Minneci Court noted damage caps, bars on recovery for
emotional suffering without physical harm, or miscellaneous other procedural obstacles.
But, the Minneci Court concluded, particular procedural quirks don't matter; all that's required is a system with
roughly similar compensation rules that produces roughly similar incentives for defendants. Chief Justice Warren,
recognizing FTCA liability for prison negligence in United States v. Muniz, had refused to import "the casuistries of
municipal liability for torts" by giving effect to divergent state immunity rules, and Bivens cases have also pointed to the
desire to avoid subjecting plaintiffs to the "niceties" or "vagaries" of state tort law. Indeed, it does seem somewhat
incongruous that a constitutional violation, which is judged by the same rules in California as in Georgia, should be
differently compensated under California and Georgia tort law. Muniz is still good law for the FTCA treatment of
federal immunity at federal public prisons; but for Bivens liability of federal private prisons, the new rule is that, when
state schemes are roughly similar, we are subject to the vagaries of state tort law. Sometimes this will produce better
results for plaintiffs, sometimes worse; it seems hard to maintain that the result will be generally worse for plaintiffs.
Tellingly, Justice Ginsburg's lone dissent focused on the vagaries, not the inadequacy of the state remedy.
C. Suing Prison Firms: Immunity Statutes
The common-law approach I've sketched above is the approach taken by most states. In the absence of a statute
providing otherwise, private prison firms are treated just like any other kind of firm. Nor is the government contractor
immunity recognized in Boyle v. United Technologies Corp. available for federal private prisons, at least not unless the
conduct complained of was specifically mandated by the federal government.
Perhaps out of an excess of caution, Tennessee has even passed legislation explicitly foreclosing the application of
sovereign immunity to private prisons: a state statute provides that "[t]he sovereign immunity of the state shall not apply
to the contractor." The statute requires that private prison contractors carry liability insurance, "specifically including
insurance for civil rights claims," and "[n]either the contractor nor [its] insurer . . . may plead the defense of sovereign
immunity in any action arising out of the performance of the contract."
New Mexico's statutory regime, which requires private prison contractors to "assume[] all liability caused by or
arising out of all aspects of the provision or operation of the facility" and carry adequate liability insurance, seems to
grant somewhat more immunity to private prison employees who perform the functions of correctional officers. The
statute classifies these employees as "correctional officers" for the purposes of two statutory sections and "no other
purpose of state law." One of these sections relates to the qualifications of correctional officers (adult citizens of good
moral character with at least a high school education and having passed certain physical and aptitude exams). Another
grants correctional officers the "power of a peace officer with respect to arrests and enforcement of the laws" in certain
circumstances. The section also provides that "[n]o correctional officer or other employee of the corrections department
shall be convicted or held liable for any act performed pursuant to this section if a peace officer could lawfully have
performed the same act in the same circumstances." So private prison guards seem to be as immune as public prison
guards while making arrests and enforcing the law.
But, notably, the statute does not incorporate the statutory section granting general tort immunity to all public
employees. So private prison guard immunity apparently doesn't extend to their day-to-day activities that can't be
classified as arrests or law enforcement.
North Carolina has gone all the way and actually immunized private prison employees to the same extent as public
ones. The statute makes "[c]ustodial officials employed by a private confinement facility . . . agents of the Secretary of
Public Safety," and as such, they (and their employers, the private prison firms, under respondeat superior) are entitled
to assert the same public official immunity as their public counterparts. (Public officers in North Carolina aren't liable
for mere negligence unless an exception applies, for instance unless their conduct is shown to be "malicious, corrupt, or
outside the scope of official authority." But while official immunity protects the officers, North Carolina does waive its
sovereign immunity, at least up to the amount of a statutory bond, so inmates aren't without a remedy.
As far as I can tell, North Carolina is the only state to have extended such broad immunity. Thus, in most states, the
liability of private prison firms and their employees is governed by regular common-law negligence rules.
Any Problems Not Unique to Private Prisons
Problems in prisons not unique to government or private run prisons
Mike Tartaglia, 2014, October, Student of law at Boston University School of Law, PRIVATE
PRISONS, PRIVATE RECORDS, Boston University Law Review, p. 1692-3
Overseeing prison operations to ensure humane prisoner treatment is a complex and difficult task for both governmentrun and private facilities. Effective oversight involves a combination of mechanisms, including direct government
action, public transparency, and litigation. Direct government action often comes from oversight personnel or
departments tasked with regulating components of prison operations and protecting basic human rights; sometimes
legislatures and executive officers use their powers to force reform. Public oversight comes primarily from media,
watchdog, and religious organizations, which report on and analyze operational and performance data. Through public
education and political organizing efforts, these groups advocate for reform of prison and jail conditions, programs, and
outcomes.
Litigation has historically been the most common and effective means of improving prison operations and
conditions, but its effectiveness in recent years has been curtailed by statutory reform and judicially imposed
limitations. Over the past two decades, the Prison Litigation Reform Act ("PLRA") drastically restricted judicial prison
oversight and the ability of prisoners to file suit. Similarly, federal restrictions on legal services funding practically
eliminated a chief source of indigent prisoner representation, and the Supreme Court broadly redefined what could
constitute adequate access to the courts for prisoners in Lewis v. Casey, requiring only an abstract "access to the courts"
rather than access to a law library or legal assistance.
Despite the changed nature of prison litigation, oversight mechanisms have struggled with some consistent
obstacles. Different jurisdictions monitor their facilities in different ways, to varying degrees of success. Systemic
problems plague prison systems across the country, ranging from sanitation and classification issues to deficiencies in
security and delivery of services. A review of prison conditions across the country is beyond the scope of this Note, but
these problems are not unique to either government or privately run prisons.
Without a comprehensive oversight mechanism in the United States, prison oversight could be enhanced by
increased access to operational information, for both government entities and the public. Outside of judicial
enforcement, "regulation and oversight of correctional facilities in the United States is spotty and in many jurisdictions
nonexistent... . External monitoring and oversight mechanisms ... in many places exist only in rudimentary form or not
at all." Increasing public access to information permits for greater scrutiny of prison conditions and operations, and
would likely improve monitoring and oversight of all facilities.
A2: Minneci Deprives Prisoners of Necessary Tort Remedies
Alternative tort remedies are available to prisoners in private prisons
Alexander Volokh, 2013, Associate Professor, Emory Law School, Akron Law Review, v. 46, SYMPOSIUM: INSIDE
AMERICA'S CRIMINAL JUSTICE SYSTEM: THE SUPREME COURT ON THE RIGHTS OF THE ACCUSED
AND THE INCARCERATED: KEYNOTE ARTICLE: THE MODEST EFFECT OF MINNECI v. POLLARD ON
INMATE LITIGANTS, p. 293-4
So Bivens, the Court held, is unavailable here. The idea that Bivens remedies can be limited when some alternative
relief is available is nothing new; rather, it's that this alternative relief needn't have been contemplated by Congress and
needn't even be federal or uniform. In this case, the alternative remedial scheme is state tort law, and so that's what the
prisoner is stuck with, even if it doesn't overlap with the Bivens remedy in every particular.
Commentators have been quick to charge that Minneci "shut[s] the federal courthouse doors to inmates who
suffer as a result of shoddy private-prison practices, "create[s] new obstacles for civil rights plaintiffs," "radically
reduces the scope of Bivens relief," allows the federal government to extinguish the Bivens remedy through
privatization, and makes the doctrine incoherent. But these fears are probably overblown: Bivens is only unavailable
because the alternative remedial regime is actually pretty attractive.
To make sense of this, we need to discuss tort remedies and constitutional law together. This isn't a natural move
for con-law scholars who don't usually think in terms of state tort law when they think about litigation by inmates in
prisons and jails. They might think of "'court-order' cases--litigation in which groups of inmate plaintiffs, represented by
counsel, seek court-enforceable orders to govern some general set of prison or jail practices." The most prominent
recent example of this sort of litigation is Brown v. Plata, where the Supreme Court upheld a population limit for the
California prison system to remedy widespread Eighth Amendment violations. They would also think of cases brought
by individual inmates seeking damages or accommodations--and within this category, they would probably primarily
think of constitutional litigation. There, what's striking is the odd compartmentalization of the field--a
compartmentalization that Minneci makes even more stark.
The greatest doctrinal divide in constitutional damages litigation is between state and federal remedies. Inmates in
state prisons can use ß 1983 to sue and collect damages from prison employees who have violated their constitutional
rights. These employees are "near[ly] universal[ly]" indemnified by their employer, so these lawsuits are against the
government in all but name, with an overlay of individual defenses like qualified immunity. Private prisons work just
like public ones as far as ß 1983 liability is concerned, n55 except that private prison employees lack qualified
immunity --so private prison inmates even (at least in this respect) get more favorable treatment by federal
courts.
Federal inmates, on the other hand, look like state inmates' poor cousins. Not having a statute like ß 1983 to cover
constitutional torts--the sins of federal agents weren't on the minds on the post-Civil War Congressmen who passed the
statute--federal inmates have to make do with the judge-made doctrine of Bivens. Bivens and ß 1983 are similar in
terms of issues like indemnification and qualified immunity, but where they differ the most is in whether the remedy is
available at all. In principle, Bivens remedies, first devised in a Fourth Amendment context, are available for Fifth
Amendment and Eighth Amendment violations (since 1979 and 1980, respectively). But the availability of adequate
alternative relief has always been a reason for limiting the remedy's availability; "of course," the Court has said, "were
Congress to create equally effective alternative remedies" for federal inmate victims of constitutional torts, "the need for
damages relief might be obviated." The alternative remedies noted are usually federal ones, but state remedies have
been relevant from the very beginning.
Contrast this with ß 1983, where the availability of alternative relief under state law is mostly, though not entirely,
n67 irrelevant. Alternative federal relief may bar a ß 1983 action, but it seems as though Congress's alternative scheme
must, at a minimum, intend to displace ß 1983, track the ß 1983 remedy closely in terms of coverage, and provide relief
against individuals. n68 In some cases, too, sufficient post-deprivation relief may suffice to avoid violating the
plaintiffs constitutional rights in the first place. But generally, alternative relief is much more of a deal-killer in Bivensland than for ß 1983 actions.
The result in Minneci was thus always potentially in the air, but now we know for sure: Bivens is entirely
unavailable for a whole class of claims. But only for federal inmates, of course, for such is the nature of Bivens.
And only for inmates in private prisons, since, as we'll see, only they can benefit from state tort-law remedies; federal
public-prison inmates' tort-law claims must be brought against the federal government under the Federal Tort Claims
Act (FTCA), n70 and we know from Carlson v. Green that this alternative remedy is insufficient to preclude Bivens.
The federal constitutional landscape for prisoner litigation (whether in state or federal courts) thus looks like the
following matrix, with the lower right-hand corner looking strangely empty:
Public prisons
Private prisons
State
ß 1983, no entity
ß 1983 (no qualified immunity),
liability
typically no entity liability
Federal
Bivens, no entity
no Bivens in areas covered by state
liability
tort law, n78 no entity liability
So much for federal constitutional litigation. But what we don't usually think about are the "good many suits,
about which far less is known, brought under state law and non-civil rights federal causes of action." n80 On the
federal level, we have administrative claims and lawsuits under the federal or state Administrative Procedure Acts, often
"relating to discipline and other grievances, including those about lost and damaged property and workplace injuries."
n81 And the little-studied area of state-court inmate litigation is also "an important piece of the litigation landscape: a
very gross estimate might be that about a quarter of what prison and jail officials think of as inmate litigation is
currently filed in state court." The tort-law matrix looks quite different than the constitutional matrix above. Instead, we
have:
Public prisons
Private prisons
State
lots of tort-law
immunity doctrines
(mostly) full exposure to state tort
Federal
lots of FTCA
law n83
exceptions to
Liability
As with constitutional litigation, state-law tort litigation can take place in either state court or federal court (if the
prisoner and the prison defendants are of diverse citizenship); FTCA litigation, though, must take place in federal court.
If you're a litigant, the tort table above suggests that there are various reasons to prefer litigating as a private
prisoner than as a public one. In Part III, I'll explain the many barriers to tort claims against both state and federal public
prisons. In Part IV, I'll explain how many of these tort barriers fall away when you're suing private prisons. In Part V,
I'll note to what extent these conclusions may be changed by the existence of the federal and state Prison Litigation
Reform Acts. In Part VI, I'll see what this tells us about Bivens doctrine as a whole. Part VII concludes.
A2: Private Prisons Poorly Run
Private prisons perform as well as public prisons
Ahmed White, 2001, Associate Professor of Law, University of Colorado School of Law; J.D., Yale University School
of Law, 1994, American Criminal Law Review, 38 Am. Crim. L. Rev. 111, Rule of Law and the Limits of Sovereignty:
The Private Prison in Jurisprudential Perspective, p. 135
Practical criticisms of the private prison center on questions of performance--that is, on the ability of these prisons to
achieve, for example, greater efficiency than their public counterparts or otherwise to provide adequate services
measured in levels of violence and abuse, recidivism, and fiscal costs and relative to public prisons. Perhaps the most
common variant of this critique focuses on a proposed contradiction between the provision of quality services of any
kind and the financial self-interests of private prison contractors. Though many performance issues remain unresolved,
there is more than ample evidence that private prisons are not dramatically more efficient than public institutions and
have struggled to provide services even equal to that of public prisons. Aside from the underdeveloped state of the
debate, the only thing consistently problematic about such critiques is that, whatever the focus, they consistently fail to
connect narrow failings to fundamental jurisprudential problems.
Private prisons performing as well as public prisons
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
There are some suggestions that the private facilities are performing at le
ast equal to public correctional facilities. Generally, PPP prisons must o
btain and maintain accreditation by the ACA. In 2002, there were a total o
f 5,000 detention facilities in the United States, of which 532 were accred
ited. Of the 532, 465 were public and 67 were private. At most, 10 percent
of government facilities were accredited, while 45 percent of private ins
titutions were accredited (Segal, 2002: 12).
Contracts also ensure quality performance, since monetary penalties are
assessed for unsatisfactory performance. The contracts sometime requi
re equal performance, as in the case of Ohio. Renewal of contracts is, o
f course, aided by good performance. In Florida, the Chamber of Commerce
in 2012 provided data showing greater provision of education, training
and vocational services in private facilities (see section on Florida
below).
The existence of competition by private prisons constrains price increases
of labor and improves efficiency in the use of labor. The existence of the
private option has changed staffing patterns in Oklahoma public prisons,
which has led to consolidation of some case manager roles and improved fo
od services.
In Ohio, private correctional officers are trained with public officers at
the same academy. The staff meetings include both private and public ward
ens. This indicates identical training of officers, and collaboration bet
ween the public and private institutions that could suggest similar levels
of performance. This is, indeed, a practice that is highly likely to impr
ove mutual learning and performance by both sectors.
In Kentucky, the Legislative Research Commission stated in a 2009 report (
p. 19) that: “All three contracted prisons offer more programming than the
comparable state prisons. In particular, the stateP
operated Little Sandy Correctional Complex and the contracted Lee Adjustme
nt Center have little programming in common except for work, GED, Narcotic
s Anonymous/Alcoholics Anonymous, and prerelease programs. The Lee Adjust
ment Center provides a number of vocational training opportunities not off
ered at Little Sandy.”
Operating standards for private prisons are high in Florida
Dr. Simon Hakim and Dr. Erwin A. Blackstone, 2013, Professors of Economics, Temple,
April 29, 2013, Cost Analysis of Public and Contractor Operated Prisons,
http://tinyurl.com/mze64qw
The Correctional Privatization Commission of Florida responded to OPPAGA’
s brief by claiming that the private prisons must satisfy higher performan
ce standards than state facilities. The Commission stated that private pr
isons must indemnify the state against any liability, are subject to great
er monitoring, must achieve and maintain accreditation by the American Co
rrectional Association, and must provide a broad range of education and te
chnical programs. The Commission noted that the two private prisons had ac
hieved earlier accreditation than required by their contract and their sco
res were the highest ever achieved by any Florida prison (pp. 9 and 10 of b
rief).
A2: Riots in Private Prisons
Privatization not responsible for riots
Professor Richard Harding, 2001, is inspector of custodial services for the
state of Western Australia, Crime & Justice, v. 28, Private Prisons, p. 288-9
A similar comment can be made about the 1995 riot at the Immigration and Naturalization Service (INS) detention
center at Elizabeth (New Jersey) run by Esmor Correctional Services, Inc. (subsequently reincorporated sub nom.
Correctional Services Corporation, Inc.). The contract specified that the facility would be occupied and the regime run
for short-term (less than thirty days) detainees. Thus the architectural design, the provision of recreational and program
opportunities, and the pricing reflected this--little more than human warehousing. At the time the riot occurred--eleven
months after the center had first opened--many of the inmates, because of bad planning and resource management
within INS, had been there for more than six months; some indeed from the very beginning. A specification that
explicitly had acknowledged this possible eventuality would have attracted a quite different bid. So the public
authorities were the major contributors to the problem. The Wall Street Journal report (July 11, 1995) was scathing:
"The real lesson from the riot is that the federal government isn't any better at managing private contracts than it is at the
many other things it does poorly. . . . Previous riots involving I.N.S. [Immigration and Naturalization Service] detainees
at facilities managed by the federal government have been far more destructive, and they led in part to the I.N.S.
deciding to hire private companies to jail detainees. But privatization can be done badly, and the I.N.S. could write the
book on how not to write the contract."
However, Esmor itself was not blameless. It became evident that the successful bid had been "lowball,"
underestimating the true costs of doing the job properly. This had serious consequential effects--inadequately paid and
thus poorly qualified guards, insufficient investment in training, high staff turnover, and so on. The subsequent INS
inquiry found that the level of salary was not realistic and could not . . . ensure the availability of well-qualified
applicants. It is obvious that many of the . . . guards hired by Esmor did not meet the requirements of the contract or
were marginally qualified. Consequently, it was no great surprise that, as inmate tensions increased, staff discipline
broke down, leading to assaults upon inmates and other forms of mistreatment, which in turn provoked the uprising.
The emerging theme, then, is that riots are seldom monocausal. It will usually be disingenuous to assert that a riot
occurred simply because the facility was privately managed (or mismanaged). Just as head office policies and failures
often create the preconditions for riots in public sector prisons (Wicker 1976; Dinitz 1981; Weiss 1991; Woolf and
Tumim 1991; Adams 1994; Smith, Indermaur, and Boddis 1999), so too they contribute to serious problems in private
prisons.
There have been several other major disturbances and riots at private prisons: for example, at Eden Detention
Center, Texas (a CCA facility) in 1996; at Dickens County Correctional Center, Texas (a Bobby Ross Group prison) in
1997; at Crowley County Correctional Center, Colorado (a Correctional Services Corporation prison) in 1999; at the
Bayamon Detention Center, Puerto Rico (also a CSC facility) in 1999; and at the Guadalupe County Correctional
Facility, New Mexico (a WCC prison) in 1999. This list does not purport to be comprehensive. There have also been
riots and disturbances at private prisons located outside the United States: for example, Port Phillip in Victoria
(Australia), Arthur Gorrie Prison in Queensland (Australia), Parc Prison at Bridgend (United Kingdom), and Doncaster
Prison (United Kingdom). Interestingly, each was a postcommissioning riot at prisons whose start-up rates had been
pushed too fast. Precisely the same pattern was occurring simultaneously in public sector prisons in those jurisdictions-for example, Woodford (Queensland), Moorland (United Kingdom), and Full Sutton (United Kingdom).
Riots and disturbances are almost always outward manifestations of bad management. The essential issue,
therefore, is that of regime quality. It is appropriate that there be an intense media spotlight on any new departure in
penal administration, particularly prison privatization. But it is premature to construe these narratives as demonstrating
across-the-board inferior regime quality, particularly in light of the fact that only fragmentary information is readily
available about public sector prison troubles.
Youngstown riot not the fault of the private prison
Professor Richard Harding, 2001, is inspector of custodial services for the
state of Western Australia, Crime & Justice, v. 28, Private Prisons, p. 287-8
There have been several major riots in U.S. private prisons. Youngstown is, once more, the best-known example.
The highly accelerated start-up pace was the catalyst for the problems (Clark 1998, pp. 14-15). The start-up schedule is,
of course, the responsibility of the public sector purchasers. Officials never seem able to learn from the experience of
others (Harding 1997, pp. 123-27), and there is no discernible difference between first-year operations of public sector
and private sector prisons. With Youngstown, the public officials (the Washington, D.C., Department of Corrections)
had an incentive to export inmates as fast as they could to relieve local political problems, and the company was not
reluctant to fill up a "spec" prison so as to increase the flow of occupancy fees. It was an explosive mixture for which
the public authority purchaser was no less at fault than the private sector provider.
Can Reform Private Prisons, Don’t Have to Abolish
Recommendations for private industry oversight
Mike Tartaglia, 2014, October, Student of law at Boston University School of Law, PRIVATE
PRISONS, PRIVATE RECORDS, Boston University Law Review, p. 1735-6
III. Recommendations for Reform
Advocates and journalists increasingly call for greater transparency in the operations of private entities that contract to
perform inherently governmental services. Among these calls have come recommendations for specific ways to increase
access to such information. Specifically, state legislators should first look to strengthen existing public records laws.
This includes expanding the reach of current laws, decreasing existing exemptions in laws, and creating new disclosure
requirements. Lawmakers are encouraged to work to repeal laws that hinder transparency. Government agencies should
also routinely incorporate transparency provisions into contracts they sign with private entities to improve data
collection and make more information available to the public via the Internet.
A. Utilize Functional Equivalency Tests to Access Information on Operations and Conditions Through Settlements
and Regular Reporting
An effective method for enhancing private prison oversight might be developing confluence between two of the
traditional prison oversight mechanisms: the courts and public access to information. Historically, settlements between
private prison operators and individual litigants have been exempt from public scrutiny; as private entities, these
companies routinely seal the terms of settlements. Government agencies, meanwhile, must disclose terms of settlements
under most public records laws. Expanding public access to information from settlement agreements - by applying a
functional equivalency test to establish the role of private prisons as government agencies - could help other litigants
and advocates study and understand some of the more severe harms that occur inside private prisons, and industry
valuations of liability.
In Tennessee, the battle between CCA and PLN over releasing business records pursuant to public records requests
led to a second ruling by the state court of appeals that both settlement agreements and settlement reports (insofar as
such reports were not produced in anticipation of litigation) are not exempt from disclosure under the state's public
records laws. The court reiterated the liberal thrust of the public records statute and its applicability to CCA, as the
functional equivalent of a government agency. Following extensive discovery on remand, the parties narrowed their
dispute to "two categories of documents: 1) releases, settlement agreements, and other documents reflecting the
settlement and/or payment of claims and/or litigation against CCA facilities in Tennessee ("the settlement agreements'),
and 2) spreadsheets or summaries of claims and/or litigation concluded against CCA in Tennessee ("the settlement
reports')." CCA argued on appeal that settlement agreements and settlement reports were not public records under
Tennessee's Public Records Act, and that the settlement reports in any event should be "protected from disclosure
because they are attorney work product."
The court, disagreeing, recognized a "consistent[]" line of precedent requiring government entities to produce
settlement agreements under the Public Records Act. Rejecting CCA's argument that the court had ""implicitly' limited
[its] finding regarding CCA as a government entity," the court found no credence in CCA's attempt to distinguish
documents produced in its litigation department from those produced in facilities operations.
The settlement reports, simplified internal documents used by CCA's litigation department to evaluate "areas ... of
concern and to be able to give advice on cases going forward," were not protected under the work product doctrine. The
court refused to protect the reports because CCA failed to establish a dispositive factor of the work product analysis:
that the documents were ""prepared in anticipation of litigation or trial.'" Because the documents were produced for
purposes of business that is the functional equivalent of a government operation in Tennessee, CCA is required to
disclose settlement reports.
In addition to its lawsuit against CCA, PLN settled a public records suit with PHS in Vermont in 2012. PLN had
argued that PHS performed an inherently governmental function because it provided medical care to Vermont prisoners,
which would be exclusively within the prerogative of the state had it not contracted with the company. PHS agreed to
turn over records relating to the resolution of six legal claims regarding medical care that totaled nearly $ 2 million, as a
state-run prison would have to do. Once this information was disclosed, PLN was able to report details on the claims
and how they were resolved, allowing advocates to get a better understanding of the incidents and the company's legal
responses. An accurate accounting of this information is crucial in this context, where Vermont uses taxpayer dollars to
pay the company to perform a government function.
The lawsuit over conditions at ICC further showed just how important public access to staffing information can be.
The settlement outlined terms that included specific staffing levels to be maintained at the facility and to address
longstanding violence and security issues. However, during the monitoring period, CCA misrepresented the number of
staff by thousands of man-hours during a period of a few months. This information only came to light because an
investigator on another matter took action, alerting CCA to discrepancies in its reports. To its credit, CCA conducted an
internal investigation and collaborated with the state on a separate one; the investigations revealed facility staff had
over-reported staffing levels by thousands of man-hours. Had an informant not tipped off the independent investigator,
the monitoring period would have concluded within a few months and the court would have had no authority to impose
sanctions, regardless of compliance with the settlement. The court, while crediting CCA's "newfound transparency in
record keeping," recognized that the revelation of deficient staffing levels was "long overdue." The court then extended
the monitoring period by two years and appointed an independent monitor to ensure future compliance with the
settlement terms.
Litigation has been a very effective tool for bringing accountability to prisons throughout the history of the United
States. Arguably, if CCA had to release such information pursuant to public records requests, the staffing deficiencies
could have come to light earlier, and prisoners in ICC would have benefitted from the level of external supervision the
Idaho Supreme Court eventually granted. However, even when prisoners are able to successfully litigate and reach
settlements in cases designed to improve conditions at a given facility, real world change may not be immediately
forthcoming. When private actors can obfuscate judicial oversight to the point that only happenstance prevents injustice,
it is clear that such enforcement suffers from weaknesses that render it incapable of wholly remedying severe structural
problems.
B. Enacting The Private Prison Information Act and State Replicas
In addition to litigation, advocates have worked to make private prisons subject to public records laws in many state
legislatures. While a comprehensive review of such activity is beyond the scope of this Note, an example from the
federal system demonstrates why legislative advocacy is often a more difficult route to enact such a requirement.
The need for greater private prison oversight is particularly pressing at the federal level, where nearly eighteen
percent of federal prisoners and half of immigration detainees are housed in private facilities. Further, immigration
detention is still widely considered the largest potential growth market for the industry. Despite consistent attempts to
apply FOIA to the industry when the industry contracts to hold federal prisoners, tens of thousands of individuals
incarcerated by the federal government are in facilities beyond the reach of this form of oversight.
Over the past decade, prison reform advocates have repeatedly attempted to enact a bill called the Private Prison
Information Act ("PPIA"). The legislation would require "non-Federal prisons and correctional facilities holding
Federal prisoners under a contract with the Federal Government to make the same information available to the public
that Federal prisons and correctional facilities are required to make available." Due largely to extensive lobbying efforts
by the private prison industry, the bill has repeatedly failed, and despite holding nearly one of every five federal
prisoners, the industry still need not comply with FOIA.
A version of the PPIA was first introduced in the House in 2005 and in the Senate in 2006. Since then, an iteration
of the bill has been proposed once more in the Senate and three more times in the House. In the House, the bill never
made it beyond the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security; only two hearings were ever
held on the bill. At the first hearing, the sponsor testified about oversight problems arising from the lack of industry
transparency. The fact that "CCA did not submit any operational reports to federal agencies so there was no meaningful
information accessible to FOIA requesters" compounded the issue of FOIA's inapplicability to private prison
companies. Neither legislators nor the media were able to obtain information on recurrent problems at private facilities;
in other words, effective oversight was curtailed by restrictions on information.
CCA campaigned aggressively against the legislation in 2008, arguing that government oversight of private prison
contracts is sufficient to ensure good performance. Facing further opposition from both the Reason Foundation and the
Department of Justice, the bill died in the subcommittee. A similar bill was brought in each of the next two sessions of
Congress by Congresswoman Sheila Jackson-Lee, but neither she nor any other Congressperson has attempted to revive
the legislation in the current session.
The bill could have a substantial impact on transparency and public oversight of private prison facilities. n340
Requiring compliance with FOIA would bring these prisons - as well as tens of thousands of prisoners, citizen and
immigrant alike - into an existing oversight regime, allowing advocates and journalists already familiar with the FOIA
process to begin requesting vital information immediately. Private prison companies can seek guidance from their
government counterparts, who are already familiar with the process of responding to FOIA requests. Further, such
legislation could also set an example for state governments wary of the political fallout of requiring private prisons to
comply with public records laws. Legislation modeled on the PPIA could also be used in states where public records
laws seemingly would apply to private prisons to increase public access to vital information.
C. Improve Existing Forms of Contract Drafting and Oversight
When private prisons enter into a contract to operate all or part of a correctional facility on behalf of a government
entity, that contract becomes the blueprint for enforcing compliance with performance standards. Government agencies
are thus the first, and best, potential lines of defense for prisoners suffering from individual or systemic harm in private
facilities. These agencies also have obligations to ensure public resources are wisely invested, particularly given the
substantial revenues the industry earns. Unfortunately, many of these agencies have failed to hold the private prison
industry accountable for often significant contract violations. Improving contract drafting and oversight could provide a
valuable means of ensuring humane and cost effective treatment.
Enhancing public access to information by incorporating and enforcing transparency provisions in contracts would
create additional resources to ensure contract performance. Whether contracts come from a department of corrections, a
legislature itself, or some other government agency, government officials should consistently include public records
compliance requirements in contracts. Officials can then augment their own oversight with expertise from advocates
who will be able to properly evaluate industry performance by analyzing regular information on staffing, medical care,
security, violence, and other issues. Compliance with independent professional organizations has proven insufficient to
ensure prisoners are protected from deprivations of their constitutional rights.
Ultimately, regardless of a state's ability to directly monitor private prison performance, applying public records
statutes to private prison companies serves an important interest: independent public scrutiny of government operations.
The history of private prisons indicates that states struggle to ensure that the industry complies with the terms of their
contracts. However, even if it were the case that states experience few or no problems with private prison contract
compliance, that alone would not ensure prisoners receive constitutionally adequate treatment while incarcerated. Public
oversight therefore represents an important independent check on the industry.
Private prisons don’t have to be abolished – oversight could be increased
Mike Tartaglia, 2014, October, Student of law at Boston University School of Law, PRIVATE
PRISONS, PRIVATE RECORDS, Boston University Law Review, p. 1708
Increasing public access to operational information could help to develop more effective oversight and ensure contract
compliance and humane treatment in private prisons. Despite holding hundreds of thousands of prisoners, "private
prisons are subject to even less scrutiny than their public counterparts. As private corporations, they are typically not
subject to open meeting and freedom of information laws that apply to state and local departments of corrections."
Heightened oversight of private prisons is essential for two reasons: the drive to generate profit gives private prison
operators incentives to "cut corners on staffing, medical care, and other essential services"; and private prisons receive
billions of taxpayer dollars from government contracts, reaping hundreds of millions of dollars annually in profits from
these contracts. Governments are obliged to protect prisoners from cruel and unusual punishment. Additionally,
taxpayers have the right to know that government revenue is spent appropriately. In the private prison context, taxpayers
deserve to have an accounting of how and why private corporations are able to earn such enormous profits by
performing an inherently governmental function - a function that, in the public context, produces no profit and is by its
nature often restricted to operate on the lowest possible budget.
The limited information available to the public concerning private prison operations, revealed through litigation,
investigative reporting, and oversight entities, indicates that private prisons commonly suffer from a host of operational
issues that harm prisoners and deprive them of basic constitutional rights. Information from various sources also
indicates that the industry often fails to provide a valuable return on investment for taxpayers. Although the industry
certainly has some "incentive[] to develop innovative corrections strategies and streamline [its] operations in order to
win and retain government contracts," that motivation in and of itself has not sufficed to ensure that the industry
performs, by and large, on a level equivalent to many governments.
To be fair, any true comparison between public and private facilities is exceedingly difficult due to differences in
populations and facility design. The limited information available from private prison companies renders such
comparisons nearly impossible: The impact of reduced access to information is ubiquitous in the private corrections
industry. Private prison operators are exceedingly protective of information regarding their operations ... making
informed analysis of the policy successes (or failures) of correctional privatization difficult to conduct. One recurring
issue ... is data on personnel recruitment and retention.
1. Staffing Information
The difficulty of obtaining information from the private prison industry has left a sparse record on crucial information
concerning staffing levels and ratios at private prisons. Though the industry claims publicly that its staffing levels
mirror those in government facilities, or alternatively that particular design aspects largely absent from government
institutions allow for equivalent treatment with fewer staff, reports in the media tend to indicate that these claims are not
well founded. The most recent comprehensive analysis took place nearly fifteen years ago, finding private prisons use
significantly fewer staff than public ones.
For staffing issues in particular, the industry regularly argues that its staffing models should be granted a "trade
secret" exemption from disclosure under public records statutes. But, "shielding such information under a claim of trade
secret protection unnecessarily hinders independent evaluation of whether the government has received a fair bargain
under the contract." Staffing is the most expensive component of a prison budget, and it is arguably the most critical
factor in ensuring institutional security, violence prevention, and program success. Thus, a strong public interest in
access to such information exists, particularly when private companies operate prison facilities at such enormous profits.
The private prison industry used to release information on staffing ratios and turnover in an industry compendium,
but it no longer does so. "Compensation and other personnel information is of particular interest when measuring the
effectiveness of correctional privatization," and the public's inability to access such information deprives taxpayers of
valuable information about institutional security and the efficiency of government services. Because approximately
sixty-five to seventy percent of a typical prison budget is spent on labor, the key to a contractor's profit margin lies in
controlling personnel costs. This is done either through reducing staff or reducing compensation?an approach that the
industry says it can do without sacrificing quality of operations. But there is good reason to doubt the private industry's
claims because compensation effects [sic] staff turnover, which in turn impacts facility safety.
In 2005, private prisons had an average of 4.7 inmates per staff member and 7.1 inmates per correctional officer, both
ratios higher than the averages in state prisons. These numbers are also higher, in some cases significantly higher, than
the ratios in five of the largest state prison systems in 2013. No more recent nationwide figures exist, but Governor Jerry
Brown of California recently revealed some interesting, yet vague information as the State continues to expand its use
of private prisons. Brown plans to send prisoners to out-of-state correctional facilities, mainly private ones, in response
to a depopulation order. The state's official 2014-2015 budget indicates that these private facilities have higher inmateto-staff ratios than California prisons. While California employs one individual for every two prisoners, out-of-state
facilities cited in the report only employ one staff person per thirty-six inmates. n144 The budget authors do not disclose
which facilities were analyzed, but this discrepancy is troubling both for advocates and for the prisoners who may be
sent to these private prisons.
The situation at the ICC provides an instructive example both of how important proper staffing levels are for
maintaining security, and how the private prison industry is able to conceal staffing information, even when under
pressure from litigation to accurately report it. Guards at the facility would permit, and sometimes encourage, prisoners
to fight each other, often as a means of maintaining internal discipline through violence, to the point where prisoners
called the facility "gladiator school." There were more assaults at the facility in 2008 than at all other prisons in Idaho
combined. Violence continued to intensify throughout litigation brought by prisoners alleging Eighth Amendment
violations. The case settled in 2011, with CCA agreeing to a two-year monitoring period to ensure compliance with
certain staffing benchmarks, designed to increase supervision and reduce violence at the facility. By early 2013, enough
information had surfaced indicating CCA's noncompliance with the staffing requirements that the Idaho state police
began an investigation. This investigation revealed that CCA had significantly overrepresented staffing hours at the
facility to the court, in violation of the agreement. The plaintiffs successfully petitioned the court to hold CCA in
contempt, taking advantage of what may have been the only enforcement mechanism able to prevent further harm and
potential future litigation.
In holding CCA in contempt of court for violating the staffing provisions of the settlement agreement, the Idaho
Supreme Court laid bare the company's lack of transparency in its provision of staffing records to the Plaintiffs: [CCA]
had compelling reasons to regularly and thoroughly check that they were complying with the staffing requirements in
the IDOC contract and Settlement Agreement. They had promised the state to improve record-keeping to make it easier
to track staffing assignments. And yet it is clear that there was a persistent failure to fill required mandatory positions,
along with a pattern of CCA staff falsifying rosters to make it appear that all posts were filled. Defendants did not keep
clear records ... .
The Court chastised CCA for failing to rectify staffing deficiencies that existed for years even prior to the settlement
and about which senior staff had been warned by multiple employees, and for withholding information from its report to
the court on its internal investigation of staffing deficiencies and improperly portraying that report as "extensive."
Plaintiffs showed staffing deficiencies were "a problem from the beginning of the settlement period ... ." The Court
went on to extend the monitoring period for two more years and appoint an independent monitor to check compliance.
Public disclosure of staffing information is crucial for private prisons - governments are the industry's only
consumers; "this private interest [in protecting staffing information] is almost always outweighed by public disclosure,
except in cases of bona fide sensitive security information (e.g., facility architectural drawings)." The industry's ability
to restrict access to staffing information in response to public records requests and litigation has hampered the efforts of
scholars and advocates to study the industry and its performance.
2. Conditions, Treatment, and Security
Staffing implicates other significant concerns, including rates of violence among prisoners and between prisoners and
staff; security measures, which can reduce escapes; and responsiveness to prisoners' health needs. While staffing levels
at private prisons are arguably the most important information that the public could gain access to through broader
application of public records laws, the industry has likewise eluded scrutiny in other areas. The federal government last
comprehensively analyzed the performance of the private prison industry more than a decade ago. Further, the majority
of private prison beds are not contracted to the federal government, so oversight must come primarily from state and
local governments, which have relatively limited resources. Difficulties in gaining access to information from private
prisons have severely limited analysis of the industry's performance.
a. Rates of Assaults, Escapes, and Other Security Metrics
Given the importance of staffing to all aspects of prison operations, reports of understaffing at private prisons implicate
far more than a straightforward computation of man-hours to determine contract or settlement compliance.
As of 1999, the rate of escape from private prisons was substantially higher than from Bureau of Prisons ("BOP")
prisons. In fact, "taken together, private prisons had 18 inmates escape from inside of secure prisons ... and 5 inmates
[escaped during transfer]," while only 1 prisoner had escaped from a secure BOP prison in the past three years, despite
the fact that BOP prisons house 17% more prisoners. Unfortunately, more recent comprehensive information is not
available. Escapes from prisons of all sorts are rare, but stories about violence and security issues in private prisons
from lawsuits and news reports seem to indicate that security remains a significant concern at many private facilities.
One high-profile incident in 2010 involved two convicted murderers and a third man escaping a private prison in
Arizona where staff routinely ignored alarms. The prison took hours to notify state officials; meanwhile, the escapees
carjacked and murdered an elderly couple, eluding capture for weeks. High staff turnover and limited training were
cited in a subsequent audit as factors contributing to the escape.
CCA's management of ICC provides another example of the relationship between inadequate prison staffing and
violence. In settling the case, the parties agreed to a staffing schedule, recognizing the vital role of staffing in facility
management. Understaffed prisons are more difficult to manage. The more prisoners any particular guard must
supervise, the less attention that guard can pay to any individual prisoner. Arguably, ICC was rife with violence
precisely because staffing was inadequate. Guards used gangs to establish and keep order because they could not do so
themselves.
Available information indicates that rates of violence, both among inmates and between inmates and staff, may be
higher at private prisons than government facilities. An independent state commission in Ohio recently found that rates
of violence soared after it sold a state prison to a private company. Audits of the facility following the sale revealed that
violence among inmates and between inmates and staff increased significantly under private control. n167 Information
on rates of violence at private facilities is generally very difficult to ascertain given the industry's exemption from public
records requirements. However, a 2011 investigation by National Public Radio concluded that prisoners in private
facilities are more likely to suffer violence at the hands of guards or other prisoners than prisoners in government
facilities.
These rates of violence and other security issues are far more troubling than they appear at first glance. Most
offenders housed in private prisons are classified as lower custody and are generally less costly to house relative to the
general prison population. Logically, the rates of assaults, escapes, and other security issues should be lower among this
population; the nature of these prisoners' classifications demonstrates their lower relative risk to institutional security.
Indications that these sorts of security concerns appear at a higher rate in many private prisons highlight the need for
greater oversight of industry operations.
b. Medical Care
Medical care, like staffing, comprises a substantial percentage of a prison's budget and can impact prisoners' rights even
more directly than staffing issues. Deficient medical care violates prisoners' rights under the Eighth Amendment and
often leads to ß 1983 litigation against prison officials. Many private prisons typically house prisoners with fewer and
less costly medical needs, and despite the importance of providing medical treatment, private medical care companies
have struggled to deliver their services at the costs required by contracts.
A report by the American Friends Service Committee details the disturbing history of medical care privatization in
Arizona. A 2010 request for proposals ("RFP") required bidding companies to provide services at a reduced cost but
received no viable bids on the contract. Following this failed RFP, the state issued a second, without a cost savings
requirement. Wexford Correctional Services bid on and won this contract - despite mainstream reports of its poor track
record - and began providing "treatment" in 2012. Within the first six months, more than 100 prisoners were exposed to
hepatitis C, resulting in a $ 10,000 fine; Wexford itself declared the Arizona Department of Corrections' medical care
system "broken," and the state severed its contract.
Facing litigation over deficient medical care, the state turned to Corizon, a private correctional healthcare provider,
to manage its healthcare. Rather than improving, however, medical care appears to have deteriorated further under
Corizon's control. More deaths were reported in Arizona prisons after litigation had commenced than in the years prior,
including suicides, which occur at a rate sixty percent higher than the national average. One facility, the Tucson
Complex, which deals with prisoners who have complex health issues, has seen the greatest spike in its death toll,
possibly reflecting years of mismanaging chronic conditions. An advocacy organization representing Arizona prisoners
noticed a significant increase in its complaints regarding medical care after the state began using private companies to
provide treatment. Given the difficulties in obtaining information from private companies, there seems to be little
benefit and a rather substantial disadvantage to privatizing medical care without saving money.
c. Programs and Services
Ensuring successful outcomes for those released from correctional facilities will have substantial benefits for society as
a component of an efficient and comprehensive criminal justice system. Access to programs that can provide education,
life skills, and mechanisms for coping with trauma or addiction can have many positive impacts on individual prisoner
outcomes and crime rates overall. Unfortunately, due to extremely limited information, little research has focused on the
availability or efficacy of programs offered to prisoners in private facilities. To the private prison industry's credit, the
last comprehensive national figures indicate that the industry widely offers educational, vocational, and drug treatment
programs, and prisoners in private facilities may have greater access to such benefits than their counterparts in
government prisons. But this information is nearly fifteen years old. Current information relating to private prisons is
incomplete at best, and given the industry's dramatic expansion over the past two decades, more current information is
needed in order to properly evaluate the accessibility and quality of private prison programming. One recent study,
comparing public and private facilities in Minnesota and their effects on recidivism, found that the state private prison
offered fewer of these types of programs and services to prisoners.
The authors of this study further found that prisoners in private facilities may be more likely to re-offend within
four years of release than those housed in public prisons. The authors noted that research on recidivism rates from
public and private prisons is extremely limited. Of the few studies that exist, recent ones have compared larger numbers
of prisoners than early studies, and they have indicated that private prisons may have a moderate negative effect on
offender recidivism. Even rarer are cost comparisons that accurately account for differences in offender populations
housed at the facilities, but the available information indicates that private prisons may also be more expensive than
government operated facilities. Without passing much judgment on the exact causes, the authors essentially found that
longer stays in private prisons may increase one's chances of committing new offenses upon release. Lower visitation
rates at private prisons and less prisoner access to rehabilitation programs appeared to correlate with higher rates of
recidivism. Further, in focusing on a private prison in Minnesota that houses an offender population that should be
cheaper than the mean, the authors found that the state did not save any appreciable amount of money by contracting
with a private prison company. Most troubling, however, was the indication that "private prisons produce slightly worse
recidivism outcomes among the healthiest and best-behaved inmates for the same amount of money [as state-run
prisons]."
Like higher rates of assault and escape in private prisons, higher rates of recidivism for prisoners returning from
private facilities should raise significant concern. Many prisoners come out of private facilities more likely to re-offend
than those housed in public facilities. Because the vast majority of prisoners will eventually be released into society, it
behooves every government to ensure these individuals have the tools to refrain from crime and become productive
citizens. The limited access to information from private prisons frustrates attempts to generate informed analysis of
industry performance. Stories of prisoner "disturbances" over issues involving abuse, medical care, and substandard
conditions in private facilities should raise concern among governments that contract with private prison companies.
Models for private prison oversight
Mike Tartaglia, 2014, October, Student of law at Boston University School of Law, PRIVATE
PRISONS, PRIVATE RECORDS, Boston University Law Review, p. 1732-3
D. Other States Whose Public Records Laws Could Be Applied to Private Prisons
Existing statutory regimes in other states could permit litigants to argue that private prisons should be subject to public
records laws under a functional equivalency test akin to those used in Tennessee and Vermont. Among states that hold
ten percent or more of their prison populations in private prisons, five (Idaho, Mississippi, New Jersey, New Mexico,
and Wyoming) do not seemingly have statutory frameworks that could easily accommodate a successful functional
equivalency challenge. Of the remaining states that have ten percent or more of their prison populations in private
prisons, a few patterns emerge from the statutory frameworks that could be used to increase public access to settlement
agreements and other information from private prisons. These laws are often based on either funding arrangements or
proximity to government operations.
For purposes of the following analysis, the twenty states that did not house any prisoners in private prisons, and
those with less than ten percent of their populations in private facilities as of 2010 are excluded. Additionally, this
analysis only focuses on a functional equivalency determination for private prisons as a singular entity, rather than
attempting to discern whether particular types of records potentially held by private prisons would be subject to public
records laws, even absent a finding of functional equivalency. Finally, litigants have yet to bring before courts in each
of these states the specific question of whether private prisons should be subject to the public records law.
Some statutory schemes provide that private entities supported at least in part by public funds can be required to
report under public records laws. In these jurisdictions, the Cherokee test, relying principally on the funding or
contracting arrangement, could be used by litigants to extend application of public records laws to private prisons. For
example, in Arizona, private prisons could be considered public bodies under the state's public records laws, because
they are "supported in whole or in part by monies from the state ... ." Likewise, Kentucky's public records law expressly
applies to private entities that receive at least twenty-five percent of their funding from the government. Hawaii's public
records law extends to cover any company that performs a service on behalf of the government. Oklahoma's law
provides that entities "supported in whole or in part by public funds" must disclose public records pursuant to requests.
In South Carolina, bodies that receive or expend public funds are subject to the public records act.
Other schemes focus more substantively on the types of services provided and the nexus between the private party
and government bodies. In these states, the most substantive factor identified in the Cherokee test, the extent of
government regulation or control, weighs in favor of finding functional equivalency. But litigants in these states should
attempt to incorporate some of the factors from the Panno and Friedmann I cases to establish a more substantial
connection. Specifically, factors concerning public funding, the centrality of the function to public agency prerogative,
and on behalf of whom the services are provided, all could support findings of functional equivalency.
For example, private prison companies could be subject to Alaska's public records law, which covers records held
or created by a private contractor on behalf of a government agency. In Colorado, private entities performing core
governmental functions are subject to the state's public records law, at least where the state retains substantial control
over the entity. Particularly where a private entity performs a public function and is subject to state oversight, those
entities must respond to public records requests in Colorado. Whether the public records law in Indiana applies to
private prisons depends on the terms of contracts; if private prisons are subject to regular audits, they might be
considered a government agency.
Wider application of these functional equivalency tests to bind private prison operators to public records
requirements could prove crucial to members of the public seeking to improve prison conditions. Litigation has
historically been the most effective and utilized means of prison oversight, but inherent limitations in scope and
geography limit its capacity to remedy many significant problems. These limitations necessitate a more comprehensive
and multifaceted form of oversight, including public access to information through public records laws.
A2: Private Prison Horror Stories
Anecdotal stories of problems in private prisons ignore anecdotal stories of those same
problems in public prisons
Professor Richard Harding, 2001,is inspector of custodial services for the state
of Western Australia, Crime & Justice, v. 28, Private Prisons, p. 286
A threshold problem is the paucity of systematic data. To a large extent information is anecdotal--and story
selection criteria operate in such a way that the anecdotes mostly relate to the private sector. This derives from the fact
that privatization is still controversial, still under active challenge. For example, a U.K. serial publication, Prison
Privatisation Report International (see also http://www.penlex.org.uk), covers the "bad stories" of U.S., as well as
international, privatization thoroughly (and, it must be said, very evenhandedly), while never mentioning public sector
"bad news" stories nor good news about the private sector. Also, for several years Private Prison Watch News Briefs,
covering exclusively U.S. privatization issues and problems, were available on the Internet (ppwatchhotmail.com); a
labor union Web site (http://www.cusa.org) also concentrates on "bad news"; and another Web site explicitly
identifying itself as "antiprivatization" can be found at http://www.oregonafscme.com/private/.
A2: Companies Build Prisons, Looking for Convicts
These efforts often fail and are even prohibited in some jurisdictions
Professor Richard Harding, 2001, is inspector of custodial services for the state of Western Australia, Crime & Justice,
v. 28, Private Prisons, p. 279-80
The normal pattern of privatization is as follows: the state identifies the need for new prison accommodation;
decides whether to utilize public sector resources or to invite the private sector to bid; if the latter, sets in motion all the
usual procurement processes and draws up a request for proposals (RFP) that specifies the type of structure and regime
it requires; evaluates RFPs; selects the successful bidder; negotiates the fine details of the contract; and brings into
operation an effective regulatory and accountability system. With that sort of sequence, a new prison does not get built
on a whim; it is tied in with the ascertainable penal needs of the state.
"Spec" prisons are quite different. Although McDonald et al. (1998, p. vi) note that in the early stages of
privatization "some small firms that speculated by building facilities in the absence of contracts with an agency" went
bankrupt, the bigger operators have not been vulnerable in this way. To some extent this has been because they have
carefully identified both a need and a potential contracting agency; in other words, they have anticipated the
procurement process. For example, CCA has followed this practice in relation to the prison at Youngstown, Ohio,
mentioned above, as well as a prison at California City, near Los Angeles, California. This 2,300-bed "spec" prison has
subsequently received a contract from the Federal Bureau of Prisons (FBOP). Nevertheless, the ultimate user's
correctional needs are something of an afterthought, having to be fitted within the architectural design or correctional
strategy of an already existing prison structure.
A recent variant of this is the development of "spec" prisons offering niche services, in particular for sick or
geriatric prisoners, who are now a burgeoning component of the U.S. prison population. For example, in 1998 Just Care
Inc. of Alabama opened a 326-bed private medical prison in South Carolina. The company has marketed itself across
the United States with local, county, and state authorities. However, in its first six months of operation it received only a
dozen prisoner-patients, well short of the 100-bed occupancy per day average required to break even.
In Australia, the United Kingdom, New Zealand, Canada, or South Africa, "spec" prisons simply could not spring
up. Whatever the correctional arguments, it is the land-use planning issues that would prevail. In none of those countries
would the applicable governmental body permit a prison to be built except by governmental endorsement. "Spec"
prisons do seem to distort somewhat both privatization and prisonization policy in the United States. This is starting to
be recognized; for example, in 1997 Texas legislated that companies must have in place a contract with a city or county
or the state Department of Corrections before building a prison.
A2: Private Prison Lobbies Bad/Increased Incarceration Bad
Privitization is in responding to a growing # of prisoners, it didn’t come about in order to
increase the number of prisoners
Professor Richard Harding, 2001, is inspector of custodial services for the state of Western Australia, Crime & Justice,
v. 28, Private Prisons, p. 278-9
II. The Creation of a Penal Lobby
It is said that prison privatization is irredeemably expansionist. "It is unconvincing, indeed even inconsistent, for
advocates of privatization to argue that their position is not wedded to growth in the prison system" (Sparks 1994, p.
24). This is a superficial observation. There is no documented case of any jurisdiction contracting for a private prison in
order to enable it to expand its prisoner population. Quite the contrary: in the United States privatization has almost
invariably been a response to increases in prisoner numbers that have already occurred. This response is also driven by
other factors such as fiscal constraints, the existence of court orders, and so on, but the key point remains that it is only
after the state's criminal justice policies and practices have put the prison situation under stress that privatization has
occurred.
In some jurisdictions, other motivations have been at work. For instance, in Victoria (Australia) the three-prison
privatization program that commenced in 1994 had as one of its explicit objectives the facilitation of the closure of a
fetid and decrepit institution (Pentridge) and a deeply demoralized women's prison (Fairlea). These closures actually
occurred. n4 In Western Australia, privatization of a new prison avowedly proceeded on the basis that, as well as
relieving chronic overcrowding in prisons whose security ratings were out of kilter with prisoner needs, the new regime
would act as a lever for prison reform (Harding 2000). This had also been the case in Queensland (Kennedy 1988).
In South Africa, privatization has been initiated by a cabinet virtually all of whose members had spent time behind
bars during the apartheid era. They, above all, were in a position to recognize the deplorable conditions of existing
prison accommodations, amounting to an abuse of human rights standards. Coming to office, they realized that public
expenditure on the infrastructure needs of the nation in relation to education, housing, and health were entitled to
priority over prison infrastructure. Yet a beginning simply had to be made--particularly in light of the burgeoning prison
population--to the business of improving prisons. Realistically, this could only be achieved by involving the private
sector.
A2: Racism
Racial mix of prisoners in private prisons is representative
Professor Richard Harding, 2001, is inspector of custodial services for the state of Western Australia, Crime & Justice,
v. 28, Private Prisons, p. 287
In terms of types of prisoner and security ratings, private prisons have still not quite caught up with the public sector.
Prisons being a major political risk, governments understandably and prudently had been reluctant to throw operators
into the deep end of the pool--maximum security. Thus, although private prisons now cover the whole range of
imprisonment situations, in comparison to the public sector, they are underrepresented in terms of maximum security
prisoners held and overrepresented in terms of medium- and minimum/low-security prisoners. Some very large facilities
(1,000-2,500 prisoners) are now privately operated, however, and the racial mix of prisoners is representative (Austin
and Coventry 2000). Private prisons are thus now playing a mature and integral part in American penal administration.
They are certainly here to stay (McDonald et al. 1998, pp. 29-32).
Private prisons have more black and Hispanic prisoners because they tend to be younger
and healthier. State prisons have older prisoners, which tend to be white, because of
health care expenditures
Christopher Petrella, 2014, UC Berkeley (graduate student), , The Color of
Corporate Corrections, Part II: Contractual Exemptions and the Overepresentation
of People of Color in Private Prisons,
http://journal.radicalcriminology.org/index.php/rc/article/view/44/html
My previous study2 published in Radical Criminology, (Issue 2, Fall 2013) demonstrates that people of color3-though
historically overrepresented in public prisons relative to their share of state and national populations-are further
overrepresented in private prisons contracted by departments of correction in Arizona, California, and Texas.
My current research on the relationship between U.S. racial formation and prison privatization enlarges my previous
work by foregrounding the question of why . That is, why is it that people of color are overrepresented in
private versus public facilities in select states even in the absence of explicit racially discriminatory
correctional placement or classification policies?
In order to explain why people of color tend to be overrepresented in private relative to public facilities around the
country this study draws on data from nine (9) states: Arizona, California, Colorado, Georgia, Mississippi, Ohio,
Oklahoma, Tennessee, and Texas. These states were selected on the basis of their reliably large sample size. Each of the
nine states considered currently houses at least 3,000 prisoners in private minimum and/or medium security facilities. 4
Additionally, this study controls for differences in facility population profile. Therefore, only public and private
facilities/units with a minimum and/or medium security designation are included in this comparison. And finally, as in
my previous work, in order to avoid artificially inflating the over-incarceration of people of color in for-profit prisons
this examination intentionally excludes figures from federal detention centers controlled by U.S. Immigration and
Customs Enforcement (ICE), the U.S. Marshals Service, and detention facilities managed at the local level. For similar
reasons, it strategically excludes data from transfer centers, work release centers, community corrections facilities, and
reception centers.
Based on an analysis of data obtained from over sixty separate public record requests 5 and reports accessible on state
department of corrections websites, this study finds that people of color are overrepresented in private minimum and/or
medium security private facilities relative to their public counterparts in each of the nine (9) states examined.
This research further posits that the overrepresentation of people of color in private versus public prisons across the
country is primarily attributable to an unlikely source: finely tailored contractual provisions that implicitly exempt
private prison companies from housing certain types of individuals whose health care and staffing costs
disproportionately attenuate profit margins. Health-and therefore age-tends to serve as a proxy for race
without any explicit reference to it.
These figures suggest that the older the prisoner, the more likely that prisoner is to be "Non-Hispanic, white."
Correspondingly, the younger the prisoner, the more likely that prisoner is to be a person of color. Most prisoners over
50 today were convicted and sentenced before the operationalization of the so-called "War on Drugs," a skein of
policies that have disproportionately criminalized communities of color. By implication, the vast majority of those
incarcerated prior to 1980-both in real numbers and on a percentage basis- was "Non-Hispanic, white." 6 Contrastingly,
black individuals constituted 30 percent of state prisons admits in 1950, 34 percent in 1960, roughly 40 percent in 1970,
and 42 percent by 1980.7
Therefore, age and health serve as dual proxies for race when explaining the persistent racial disparities
in private versus public facilities with similar population profiles.
Elderly and/or geriatric prisoners tend to cost more to incarcerate. A 2012 ACLU report estimates that it costs $34,135
per year to house a non-geriatric prisoner, but it costs $68,270 per year to house a prisoner age 50 and older. 8
My study firmly suggests that private prison management companies9 responsible for providing health services exempt
themselves contractually from accepting and housing prisoners with chronic medical conditions as well as those whose
health care costs will be "above average."10 This fact results in a prisoner profile that is far younger and far "darker" in
minimum and/or medium security private facilities than in select counterpart public facilities. In fact, the states in which
the private versus public racial disparities are most pronounced also happen to be the states in which the private versus
public age disparities are most salient. Please see data on Oklahoma and Texas.
Secondly, on the rare occasion that a state department of correction retains control of health services while contracting
with a private prison management company11 elderly populations still remain disproportionately expensive to
incarcerate because those assigned to monitor geriatric and/or chronically ill prisoners often require special training,
benefit from higher pay grades, and are assigned at lower staff-to-prisoner ratios. Each of these considerations further
erodes profit margins.
In sum, explicit contractual exemptions for health services and implicit provisions for reducing "high cost" geriatric or
infirmed prisoners helps to explain ongoing racial disparities in private versus public prisons with similar population
profiles. My modest hope is that this study provides an incontrovertible example of the ways in which seemingly "race
neutral" or "colorblind" carceral policies continue to have a differential impact on communities of color. 12
A2: Illegitimate Delegation of Authority
Private prisons operate under contract, no authority has been surrendered
Professor Richard Harding, 2001, is inspector of custodial services for the state of Western Australia, Crime & Justice,
v. 28, Private Prisons, p. 265-6
A private prison is one managed by a nongovernment entity on behalf of the state. As Logan states (1990, p. 13), it is "a
place of [involuntary justice system] confinement managed by a private company under contract to government." The
inmates would otherwise be incarcerated in government operated prisons. The U.K. chief inspector of prisons has said
that "so-called 'private prisons' are not private sector prisons but [state] prisons run on contract for the [responsible
government department] by a private sector company" (Ramsbotham 1995/96, p. 8). This observation remains true
whether the private company manages a state-owned prison or also owns the physical structure itself.
These definitions bring out two crucial points: that authority to hold and deal with prisoners is derived from public
law, not private arrangement, and that private prisons are an integral component of the jurisdiction's prison system. It is
crucial to emphasize the first point so as to contrast contemporary privatization with the statutorily unregulated deals
relating to the leasing of convict labor that first emerged in the United States in the early nineteenth century. The second
point highlights that the state, in outsourcing or delegating service delivery, has not in principle surrendered any part of
its overall responsibility for system objectives, standards, legality, or equity.
For Profit Prisons Bad
Generally Bad
Many critcisims of private prisons
Lucas Anderson, 2009, is a J.D. candidate at The George Washington University
Law School and a member of the Public Contract Law Journal, Public Contract Law
Journal, https://www.prisonlegalnews.org/news/2009/dec/15/kicking-the-nationalhabit-the-legal-and-policy-arguments-for-abolishing-private-prison-contracts/
Compelling arguments against private prisons are abundant. Privatization critics
argue that prison administration is a discretionary function that should only be
performed by public actors.39 These critics note that, because prison managers
and guards exercise considerable discretion over matters relating to inmate
life, liberty, and property, the private exercise of this discretion is morally
problematic and inconsistent with legal and constitutional prohibitions on the
delegation of inherently governmental activities.40
Privatization critics also note that the profit-based business model encourages
private prison operators to minimize expenditures for inmate services and prison
staffing, thereby impairing safety and undermining prisoners’ basic human
rights.41 Finally, privatization critics argue that because private prison
companies generate revenue on a per-prisoner, per-diem rate, they have an
incentive to encourage high recidivism rates and lengthy prison sentences.42
This incentive manifests itself in the decision by the private prison companies
to eschew rehabilitation programs and to lobby in favor of harsh criminal
sentencing measures. Such critiques of the privatization trend all share in
common the understanding that a for-profit private business model is
fundamentally incompatible with the purposes and goals of an effective and
humane penal system.
Inappropriate Delegation
Privitization replaces the appropriate role of the state and threatens liberty interests
Lucas Anderson, 2009, is a J.D. candidate at The George Washington University
Law School and a member of the Public Contract Law Journal, Public Contract Law
Journal, https://www.prisonlegalnews.org/news/2009/dec/15/kicking-the-nationalhabit-the-legal-and-policy-arguments-for-abolishing-private-prison-contracts/
Aside from its nonsuccess in improving crowded prison conditions, the
privatization “remedy” has created additional financial, legal, and moral
problems. The first of these problems relates to legitimacy. When a private
company assumes responsibility for the administration of inmate punishment and
rehabilitation, it improperly undertakes to perform an inherently public
discretionary function at the expense of inmates’ fundamental liberty interests.
Out of State Prisoner Transfers Bad
Private prisons result in out of state prisoner transfers
Shymeka L. Hunter, 2000, Alaska Law Review, NOTE: MORE THAN JUST A PRIVATE AFFAIR: IS THE
PRACTICE OF INCARCERATING ALASKA PRISONERS IN PRIVATE OUT-OF-STATE PRISONS
UNCONSTITUTIONAL?, p. 322
Understanding the significance of Brandon requires that one examine the intimate role the private sector plays in the
correctional system. Indeed, privatization of the prison system encourages out-of-state transfers because private entities
can choose to build prisons in states that offer the most economic benefits. These out-of-state private entities are then
able to enter into contracts with correctional systems in other states to house prisoners. As described below, many states
consider this a viable option to address massive overcrowding. Section A examines the recent problem of prison
overcrowding. Section B looks at the historical relationship between correctional institutions and the private sector.
Section C summarizes the debate over the private prison industry.
Visitation critical to rehabilitation, for which there is a right. Transferring prisoners out
of state violates that right
Shymeka L. Hunter, 2000, Alaska Law Review, NOTE: MORE THAN JUST A PRIVATE AFFAIR: IS THE
PRACTICE OF INCARCERATING ALASKA PRISONERS IN PRIVATE OUT-OF-STATE PRISONS
UNCONSTITUTIONAL?, p. 349-51
Experts across the social sciences agree that visitation is the most important component of rehabilitation. Visitation
plays such a key role because it prevents prisoners from being "socialized to the life of an inmate [and helps transform
them into] individuals who have the necessary skills and emotional stability to face up to their responsibilities as
citizens, parents and spouses." Moreover, when prisoners are able to maintain contact with family members during
incarceration, they are more likely to sustain their relationships after their release. Inmates who have families to support
them upon release are less likely to return to a life of crime. "Preservation of the family unit is important to the
reintegration of the confined person and decreases the possibility of recidivism upon release." Not surprisingly, studies
also show that tensions are less intense within prisons where inmates receive regular visits.
In Brandon, even the Alaska Supreme Court acknowledged that visitation plays an indispensable role in any
realistic rehabilitative effort. In reference to the social science research findings, the Brandon court noted that no single
factor has been proven to be more directly correlated with the objective of a crime-free return to society than visiting.
The reason for this is almost too obvious to state: "Strained ties with family and friends increase the difficulty of making
the eventual transition back to the community." If those ties are to be preserved, visiting is imperative.
Despite recognition of this overwhelming evidence, the court shied away from declaring that visitation is indispensable
to rehabilitation. Instead, the court noted that "our recognition that visitation privileges are a component of the
constitutional right to rehabilitation does not define their required scope or the permissible limits on their exercise." The
scope and limitation of prisoners' rights will have to be defined in further adjudications. By including this statement, the
court diminished the importance of this case as a powerful statement of prisoners' rights.
Given the Brandon court's recognition that visitation is an indispensable aspect of rehabilitation, its allowance for
judicial review of a prison administration's decision to transfer an inmate hundreds of miles away to a private Arizona
facility falls far short of protecting the prisoner's fundamental rights. Since rehabilitation is a fundamental right under
Alaska law, the virtual elimination of visitation is unjustifiable, with or without judicial review. This is particularly
unjustifiable when the out-of-state transfers are motivated strictly on financial factors. Unless the preservation of
Alaskans' fundamental rights is considered contingent upon the health of the state's budget, transferring prisoners like
Brandon is improper, even with due process and judicial review.
Even when combined with current statutory provisions, Brandon still fails to protect prisoners' rights adequately.
Upon first glance, it appears that Brandon's allowance for judicial review of classification hearings, coupled with the
prohibition by Alaska Statutes section 33.30.061 against transfers that substantially impair rehabilitation, is sufficient to
protect prisoners' right to rehabilitation. However, since it has been established that visitation is a key element to
rehabilitation, transfers to out-of-state private prisons substantially interfere with a crucial aspect of rehabilitation in
virtually all cases. This is especially true if prisoners lack the resources to fund family visits to Arizona or any other
state outside Alaska. Even where an inmate does not receive visitors on a regular basis, incarceration in Alaska remains
key: if visiting the incarcerated in Alaska is not a simple undertaking, even on an infrequent basis, it is surely far more
difficult to visit an inmate incarcerated in a prison located in a distant state.
The key role visitation plays in rehabilitation is a major issue that Brandon hints at but fails to follow through to its
logical conclusion. Rather than mandating a per se rule which would prohibit out-of-state prison transfers, the court only
went so far as to permit judicial review of such transfer decisions. This inefficient result requires each prisoner to seek
judicial review every time the commissioner orders an out-of-state transfer, or to have prisoners bring civil claims
alleging an infringement on rehabilitation due to the lack of visitation when the Alaska Supreme Court has already
accepted that visitation is indispensable to rehabilitation. If visitation is indispensable to rehabilitation, it seems logical
to prohibit out-of-state transfers, preventing the de facto elimination of prisoners' visitation rights.
VI. Conclusion
As the Alaska Constitution states, prisoners have a fundamental right to rehabilitation. Visitation is one of the most
important elements to rehabilitation. Transfers to private out-of-state prisons substantially impair visitation, thus
impairing rehabilitation. Accordingly, such transfers violate Alaska's Constitution. Brandon's recognition that
administrative decisions on prison transfers are subject to judicial review is a critical step in the right direction. Further
steps need to be taken in order to safeguard the constitutional rights of Alaska prisoners.
Rule of Law
Private prisons inconsistent with the rule of law
Ahmed White, 2001, Associate Professor of Law, University of Colorado School of Law; J.D., Yale University School
of Law, 1994, American Criminal Law Review, 38 Am. Crim. L. Rev. 111, Rule of Law and the Limits of Sovereignty:
The Private Prison in Jurisprudential Perspective, p. 112-3
In this Article, I argue that a rigorous jurisprudential critique of the private prison shows that the private prison
tends to distort dramatically the relationship between state and society in the criminal context, and does so in a way that
contradicts the most central of liberal legal precepts: the rule of law. Such a rule of law critique of the private prison
sees in that institution a key development: the simultaneous expansion and diffusion of state sovereignty, accompanied
by the thorough merger, or interpenetration, of public and private realms. This process renders the private prison utterly
inconsistent with the rule of law's central aspiration: the restraint of sovereignty and the concomitant realization of
negative freedoms and minimal equality by the mediation of law. From this perspective, and following Stanley Cohen's
more general critique of criminal justice reforms, I argue that the private prison inevitably constitutes an extravagant,
but at the same time insidious, aggregation of state power in a context where such power is being deployed in a largely
irrational way. Such a critique reveals with considerable irony that the privatization of prisons, a movement ostensibly
based on the ideal of the "minimalist state," is actually the antithesis of such an ideal.
This notion that the rule of law is premised on an aspiration to restrain sovereignty is shared in key respects by such
diverse figures as the liberal, Friedrich von Hayek, and the neo-Marxist jurist, Franz Neumann. The rule of law's
antithesis to the private prison follows more specifically from the idea that the rule of law's sovereignty-restraining
aspiration presupposes the clear demarcation of the sovereign and the transparency of sovereignty, which in turn
presupposes the substantial segregation of public and private realms. Although these conditions have never been fully
realized in any society, and in many ways constitute a problematic formulation, the regime implied by the rule of law
retains a contingent normative value, guaranteeing a baseline of liberty and equality. Inasmuch as the private prison is
premised intrinsically on the simultaneous extension and diffusion of sovereignty, and also on the merger of the public
and private, it is intrinsically at odds with the rule of law and emerges as a fundamentally illiberal development--far
more problematic than the public prison already is.
Of course, the doctrine of the rule of law is not a rule of law in the literal sense: a "violation" of the rule of law does
not make something illegal in any positive sense. Still, this Article's critique of the private prison is practically, and
perhaps even legally, relevant in several ways. First, it gives general jurisprudential structure to a debate that largely
lacks such structure. Second--and perhaps this is part of the basis of its claim to be jurisprudential--this Article's critique
of the private prison describes a common link between erstwhile separate normative, practical, and legal critiques of this
institution. This Article argues that there are very concrete connections between the private prison's anti-rule of law
character and its practical, legal problems. The history of the private prison's antecedents, especially of the convict lease
system, shows clearly that the private prison's ubiquitous tendencies to corruption, legal ambiguity, and the
augmentation of state power are tied organically to its inconsistency with the rule of law. n7 In other words, history
shows that the otherwise abstract antithesis between the private prison and the rule of law seems to be accompanied by
inherent tendencies to translate into significant practical and legal problems as well.
In order to develop these arguments, this Article proposes in Part II a definition of the rule of law that transcends
conventional ideological positions, that is centered on the concept's sovereignty-restraining aspiration, and that stresses
the doctrine's contingent rationality. Such a definition is shown to imply the separation of public and private and the
clear demarcation of sovereignty. Here I begin to develop the notion that the rule of law is fundamentally inconsistent
with the private prison. Part III tackles the crucial and deceptively complex matter of defining the private prison. Here, I
outline the curious history of the private prison and show that the private prison, in some form or another, is the
historical norm. Next, Part IV describes the old convict lease system as the contemporary private prison's closest
juridical antecedent, as an institution that closely anticipates the contemporary private prison's relationship to the rule of
law and the question of sovereignty, and anticipates as well the positive, organic relationship between the private
prison's abrogation of the rule of law and its persistent practical and legal failures. In Part V, I describe in more detail
the characteristics and origins of the contemporary private prison and expose the shortcomings of existing attempts to
critique the phenomenon. This Part also comprises the main critique of the private prison from a rule of law perspective.
Here as well I consider the limits of this Article's critique with regard to other modes of privatization. Finally, Part VI
offers a cautionary conclusion that considers the implications of the private prison in broader context.
Private prisons means prisoners can be denied protection of the rule of law
Mary Sigler, Professor of Law, Arizona State University College of Law, 2010, Florida State University Law Review,
Private Prisons, Public Functions, and the Meaning of Punishment, p. 156-7
The delegation of public functions to private actors also gives rise to concerns about political legitimacy. In the
liberal-democratic context, legitimacy derives from the will of the people and the rule of law. Specifically, selfgovernment entails a significant role for popular participation in the making and implementation of the rules and
policies that bind us. In the context of privatization, however, the imprecision of drafting ensures that contracts will
underspecify the terms and expectations of service, leaving extensive discretion to private actors facing unanticipated
contingencies. Under these circumstances, the quality and character of public services will depend on the ad hoc
judgments of private actors, who may or may not be motivated by public concern. Although the exercise of contractor
discretion in some contexts-say, garbage collection-is likely to be unproblematic, in other cases, individual citizenswelfare recipients, school children, inmates-may be subject to arbitrary decisionmaking and denied the protection of the
rule of law. In a political environment where even intergovernmental delegation raises concerns, delegation to private
actors is even more worrisome. For "[p]rivate actors exacerbate all of the concerns that make the exercise of [delegated]
discretion so problematic."
Rule of law necessary to appropriately limit sovereignty
Ahmed White, 2001, Associate Professor of Law, University of Colorado School of Law; J.D., Yale University School
of Law, 1994, American Criminal Law Review, 38 Am. Crim. L. Rev. 111, Rule of Law and the Limits of Sovereignty:
The Private Prison in Jurisprudential Perspective, p. 115-6
This sovereignty-restraining notion of the rule of law surfaces in the earliest attempt to define the concept. In the
Western world, the idea of the supremacy of law over politics emerged in classical society and was entrenched
substantially (albeit with limited scope) by the Middle Ages. According to Geoffrey Walker, the rule of law, at least in
concept, survived the oscillations of royal powers in the Medieval and early modern eras to emerge in modern times as a
viable set of claims against the unmeasured administration of power by sovereigns. But in the final analysis it is only
with modern interpretations of the rule of law--at least the serious ones--that a consistent emphasis is placed on the rule
of law's sovereignty-limiting character. Montesquieu, especially, offers the notion that the rule of law demands the
comprehensive restraint of sovereignty. In such a mode, the concept of the rule of law was eventually able to comprise
the juridical ideology, one might say, of bourgeois ascendancy, forming a set of effective challenges to aristocratic
prerogative as well as the juridical basis for "free" competition within the structures of the capitalist market.
An essentially sovereignty-restraining view of the rule of law to a large degree transcends the political perspectives
of its modern exponents. Thus, such a view pervades the work of the archliberal Friedrich von Hayek and the common
law parochialist A.V. Dicey, the consummate liberal centrist Max Weber, as well as the Marxist jurists Franz Neumann
and Otto Kirchheimer, and the Marxist historian E.P. Thompson. The essential aspects of Hayek's and Dicey's
perspectives on the rule of law are fairly well-known and bear little repetition. The same might be said of Weber, who
famously draws a complex causal link between the emergence of rule of law norms and the rise of modern capitalism.
But for American audiences, the contributions of Thompson and especially Neumann and Kirchheimer to the rule of
law debates are rather less familiar. Thompson's detailed analysis of class relations in early modern England prompt him
to conclude that "the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen
from power's all-intrusive claims, seems to me to be an unqualified human good."
Neumann's and Kirchheimer's engagements with the concept are rather more extensive and nuanced than
Thompson's, but ultimately reach the same conclusion. For Neumann and Kirchheimer, both sovereignty and freedom
from sovereignty are essential ideological and functional bases of modern society. The rule of law emerges, they argue,
as a means of forging a provisional, workable reconciliation of these fundamentally contradictory dynamics. Like
Thompson, and to some extent Weber, Neumann and Kirchheimer end up with a healthy, but thoroughly contingent,
regard for the value of the rule of law vis-a-vis the quest for human freedom and reason.
However contingent, such leftist defenses of the rule of law have drawn heavy fire from contemporary critics who
stress endemic connections between the rule of law and such evils as class exploitation, patriarchy, and the oppression
of minorities. There certainly is good reason to be circumspect about the ultimate value of the rule of law to the quest
for a truly rational social world and good reason as well to be aware of the connections between existing rule of law
norms and exploitation, patriarchy, and so forth. Yet as Marx himself anticipated, it is probably wrong to draw too tight
an association between the rule of law as such and capitalism's (or modernism's) defeat of equality, reason, and human
dignity. Indeed, perhaps even more to the point are the arguments of Neumann and Kirchheimer, identifying an ugly,
intimate connection between anti-rule of law "decisionism" as intellectualized by Carl Schmidt, on the one hand, and
the policies and structures of twentieth century fascism, on the other. Neumann and Kirchheimer make clear not only
that the rule of law need not be opposed intrinsically to leftist agendas, but also that leftist agendas are usually first to
suffer, and leftist gains first to fall, when the rule of law is abrogated by modern regimes.
Whatever the final merits of this debate--I tend to accept Neumann's and Kirchheimer's claims--the point remains
clear that for serious advocates of the rule of law, the concepts' sovereignty-limiting function is absolutely key. How,
one might wonder, does the rule of law accomplish such an end? On this point, too, there actually is substantial
consistency. Serious defenders of the rule of law insist, in the first instance, that the concept, while not a statement of
law in its own right, must be understood to possess a minimal amount of legal authority, to operate, as Hayek puts it, as
a "meta-legal doctrine," or as Neumann implies, as a secular, quasi-natural law doctrine. n26 Beyond this, there is
agreement too that the rule of law's sovereignty-restraining function rests on the application of a set of subsidiary
principles--in particular: generality, neutrality, universality, non-retroactivity, separation of powers, the insularity of the
legal system, and so forth--to the normative structure of the law.
Such an agenda implies a social system premised on the segregation of political and legal authority, formal
equality, and "negative" freedoms vis-a-vis the sovereign. This relationship in turn presupposes a mutually exclusive,
but at the same time complementary, distinction between the public realm, the home of sovereignty, and the private
realm, the negative reflection of sovereignty. The resulting regime is not unproblematic. For example, the public-private
distinction tends to sanction the substantial residual sovereignty (in the form of tyranny, really) and inequality of the
domestic realm. And as both Marxists and Weberians recognize, the rule of law simultaneously facilitates and reflects
the exploitative, alienating dimensions of capitalist civil society. Nevertheless, like Marx, Neumann and Kirchheimer,
and, to some extent, Weber, I think it is important to embrace the rule of law as the apogee of legal rationalization under
our existing historical horizon. Even more fundamentally, it may be that some variant of the rule of law will always be
preferable to a system in which power knows no restraint; it may be that the rule of law is essential to any rational social
order.
Private prisons system inconsistent with the rule of law
Ahmed White, 2001, Associate Professor of Law, University of Colorado School of Law; J.D., Yale University School
of Law, 1994, American Criminal Law Review, 38 Am. Crim. L. Rev. 111, Rule of Law and the Limits of Sovereignty:
The Private Prison in Jurisprudential Perspective, p. 118-9
Of course, the key question is then, how does the rule of law relate to the private prison? A number of authorities
have emphasized the relevance of rule of law principles in rationalizing the criminal justice system in general. The rule
of law is understood as a basis for the critique of discretion, inequality, and unbounded expressions of state power in the
institutions of criminal law and criminal procedure. In fact, some commentators contend that the rule of law directly
forecloses private criminal justice functions. It is indeed possible to say that the rule of law, because it implies the
sovereignty of law, vitiates private justice simply because private persons neither can construct nor implement between
themselves general, formally equal, predictable, and non-retroactive legal norms. n It also is possible to argue as well
that private law-giving is inconsistent with the insular, self-contained pretensions of the rule of law. There are indeed
many ways to draw out antitheses between the rule of law and the privatization of law, especially in the criminal
context.
Yet it is in the most fundamental way, I think, that the rule of law speaks critically to the private prison. My main
thesis is as follows: The rule of law evidences an essential antipathy to sovereignty and a concomitant ambition to
restrain sovereign deeds with subsidiary norms like generality, universality, separation of powers and so forth. The
aspiration behind these norms only can be realized if the sovereign is, in the first place, a legally and politically
transparent entity with clearly demarcated boundaries. The idea of freedom from sovereignty that the rule of law claims,
requires that the sovereign have definite limits, that when an institution or person acts, we can know clearly if it or she
is the sovereign. Who, otherwise, is to be restrained from whom? It is in this manner that rule of law norms presuppose
the clear segregation of state from civil and domestic society and of public from private realms.
It is from such a perspective that hannah Arendt, in her otherwise problematic classic, quite accurately defines the
absence of the rule of law as a signature aspect of twentieth century totalitarianism. Among others, Neumann and
Kirchheimer also note how the abrogation of the rule of law provides the legal foundation of fascism; how, for example,
the fascist negation of rule of law norms authorized the erosion of legal generality and the public-private distinction, and
in turn facilitated a massive interpenetration of public and private realms that featured the state's domination of private
life, the frequent resort to individualized and retroactive laws, the complete politicization of legal process, and the
domination of the state by private cliques and quasi-public political parties.
Needless to say, the return of the private prison itself does not necessarily imply the advent of totalitarianism or
fascism or any other kind of far-reaching reconstruction of our political and legal universe. But inasmuch as the prison
is in many respects the quintessence of a state's sovereign function, and inasmuch as the private prison so thoroughly
merges the private and the public and blurs the boundaries of the sovereign, the private prison cannot help but be
antithetical to the rule of law. Immediately, this exposes the private prison as fundamentally problematic on at least an
abstract, normative plane. Perhaps more critically, I shall argue that the private prison's concrete problems have roots in
a juridical structure built around the abrogation of the rule of law.
Prisoner Rights
Lack of disclosure in private prisons undermines prisoner rights
Mike Tartaglia, 2014, October, Student of law at Boston University School of Law, PRIVATE
PRISONS, PRIVATE RECORDS, Boston University Law Review, p. 1691
Effective oversight is a challenge for both public and private prisons. While attorneys and advocates have developed
some successful methods of prison oversight, privatizing prison operations limits the effectiveness of these methods. As
oversight through litigation has diminished in effectiveness over the past few decades, federal and state governments
dramatically increased their use of private companies. In the vast majority of United States jurisdictions, private prisons
are not required to disclose information pursuant to public records requests in the same manner as government prisons.
Extending public records laws to private prison companies can provide a meaningful route for independent oversight to
ensure that overcrowded, budget-strained prison systems are effectively policed.
Many state governments have responded to mounting calls for austerity and efficiency by privatizing core
government functions, including correctional services. This trend has had significant consequences for the independent
oversight of government operations traditionally provided by media and advocacy organizations that utilize public
records laws. According to a 2012 report by In the Public Interest, Without information to help answer ... important
questions, watchdog organizations, journalists, advocacy groups, and interested residents lose the ability to understand
government policies and actions, monitor public spending, inform their positions on various issues, advocate for what
they believe in, and hold the government accountable. A well-functioning democracy relies on the public having honest
answers to these key questions. Privatization should not make this information more difficult for the public to obtain.
Contracting with private prison companies implicates two important concerns regarding public accountability: liability
for violations of prisoners' rights and access to operational information. In addition to seeking cost savings,
governments may seek to reduce liability by contracting for the provision of core functions. But privatization presents
obstacles to the traditional means of checking government power available to members of the public, such as litigation
and access to information. Increased transparency of private prisons could make up for shortcomings in oversight
resulting from both conditions generally applicable to corrections and to conditions unique to the industry.
Private prisons lead to the violation of inmate rights
Gillian E. Metzger, 2003, Associate Professor of Law, Columbia Law School, October, Privatization as Delegation, p.
1392-3
- My fourth example, private prisons, is one of the most remarked-upon examples of government privatization.
Extensive privatization characterized incarceration in the nineteenth century, with private entrepreneurs and companies
managing prisons and indeed "leasing" convicts from the state. By 1940, however, this sort of private involvement had
all but disappeared, largely in response to exposure of the extremely harsh conditions under which inmates were being
held by their private jailors. Over the last two decades, pressures on governments to house expanding prison populations
and improve prison conditions without substantially increasing costs kindled a rebirth of interest in private prisons.
Governments turned to private entities not only to build prison facilities but to operate them. In 2001, 12.3% of all
federal prisoners and 5.8% of all state prisoners, approximately 92,000 inmates, were housed in private prison facilities.
Private prisons tend to be medium and low security facilities, and many community-based facilities (such as group
juvenile homes and halfway houses) are also privately run.
Private prison operators exercise enormous coercive powers over the inmates in their custody. While their contracts
with public prison authorities set out detailed requirements regarding prison conditions and operation, incarceration by
its nature entails exercise of substantial discretion in closed environments with little public visibility. Given their
extreme dependence and vulnerability, prisoners face a particularly acute potential for harm from abuse of these powers.
Moreover, most private prisons are run or owned by for-profit corporations, which have a financial incentive to cut
costs - for example, by hiring inexperienced and therefore cheaper personnel, understaffing, or failing to provide
adequate medical care and other services. Such practices can lead to violation of inmates' rights. But the case against
private prisons is easy to overstate, given the widespread problems and deficiencies in many public prisons. Indeed,
factors such as private prisons' greater exposure to damage awards and contractual obligations arguably make them in
some ways more accountable than public prisons.
Delegation of prison to the private sector threatens due process
Lucas Anderson, 2009, is a J.D. candidate at The George Washington University
Law School and a member of the Public Contract Law Journal, Public Contract Law
Journal, https://www.prisonlegalnews.org/news/2009/dec/15/kicking-the-nationalhabit-the-legal-and-policy-arguments-for-abolishing-private-prison-contracts/
A. Due Process Requirements and the Nondelegation Doctrine Forbid Private Prison Administration
Incarceration, which renders every aspect of prisoners’ physical and mental health, safety,
education, and socialization subject to the control of prison guards and their superiors, directly
affects inmate liberty interests.51 The Supreme Court has found that under the Due Process
Clauses of the Fifth and Fourteenth Amendments, the Government may not delegate discretionary
governmental functions to private entities with a financial stake in the way such discretion would
be applied.52 The controls exercised by prison employees are inherently discretionary and the
manner in which they are applied cannot be influenced by the pecuniary aims of the operator
without offending prisoner due process rights. Like their public counterparts, private prison guards
are often called upon to decide appropriate punishments for inmate misconduct.53 Many of these
guards have stock in their employer-company or receive some other profit-sharing benefits,54
giving them a direct interest in the outcome of their professional decisions. Thus, they benefit when
prisoner sentences are lengthened and their good-time credits reduced.55 This conflict, unique to
private prisons, is illustrative of why certain quasi-judicial functions are nondelegable under due
process requirements.56
Inherent government functions should not be delegated
Lucas Anderson, 2009, is a J.D. candidate at The George Washington University
Law School and a member of the Public Contract Law Journal, Public Contract Law
Journal, https://www.prisonlegalnews.org/news/2009/dec/15/kicking-the-nationalhabit-the-legal-and-policy-arguments-for-abolishing-private-prison-contracts/
B. The Office of Management and Budget A-76 Circular and the Federal Acquisition Regulation
Prohibit Delegation of “Inherently Governmental Functions”
In 1966 the Office of Management and Budget published Circular A-76, providing that federal
agencies must rely on private sector sources for service provision when it is cost-effective and
would not adversely impact governmental operations.57 Several exceptions to this policy apply,
including instances where no satisfactory commercial source is available for a particular service,
where in-house performance would cost less than outsourcing, or where the service requires an
exercise of discretion in applying governmental authority.58 The Federal Activities Inventory
Reform Act of 1998 revised the A-76 process and defined “inherently governmental functions” as
“activities that require the exercise of discretion in applying Federal Government authority.”59
Thus, inherently governmental functions were specifically excluded from the A-76 policy of private
sector source preference.60
Relevant sections of the FAR also prohibit delegations of certain governmental functions.61 Under
the FAR, an “inherently governmental function” is defined as a function that is so intimately related
to the public interest as to mandate performance by Government employees . . . . An inherently
governmental function includes activities that require either the exercise of discretion in applying
Government authority, or the making of value judgments in making decisions for the Government .
. . . An inherently governmental function involves, among other things, the interpretation and
execution of the laws of the United States so as to . . . (iii) Significantly affect the life, liberty, or
property of private persons.62
In the course of their duties, prison employees frequently decide whether to administer
punishment in response to inmate misconduct. Procurement regulations rightfully require such
quasi-judicial decisions, which affect the “life, liberty, or property of private persons,”63 to be
made by governmental actors.64 Only the Government may legitimately decide, for example,
whether an inmate is up for parole or eligible for a sentence reduction because of good behavior.
Likewise, the decision whether to apply corporal punishment or to cite an inmate for misbehavior is
a decision “intimately related to the public interest” that “significantly affect[s] the life, liberty, or
property of private persons.”65 These discretionary duties are clearly within the ambit of Circular
A-76 and the FAR definitions of “inherently governmental function[s].” As such, they are protected
from private sector delegation.
Private prisons confer coercive powers to private actors
Lucas Anderson, 2009, is a J.D. candidate at The George Washington University
Law School and a member of the Public Contract Law Journal, Public Contract Law
Journal, https://www.prisonlegalnews.org/news/2009/dec/15/kicking-the-nationalhabit-the-legal-and-policy-arguments-for-abolishing-private-prison-contracts/
Delegating public responsibilities for inmate treatment and rehabilitation to
private businesses implicates a concern that “governmental power -- power
coercive in nature -- will be used to further the private interests of the
private actor, as opposed to some different public interest.”48 Assigning the
duties of inmate care -- including the provision of food, clothing, sanitary
supplies, medical care, and disciplinary authority -- to profit-seeking entities
entails obvious legal and moral questions. The constitutional doctrine of
nondelegation prohibits the Government from assigning certain functions to
financially interested private actors.49 Similarly, the Federal Acquisition
Regulation (FAR) and the Office of Management and Budget’s revised A-76 Circular
also protect certain “inherently governmental functions” from privatization.50
Under these legal guidelines, prison administration -- a discretionary duty that
directly impacts inmates’ liberty -- may not be outsourced to the private
sector.
Delegation to the private sector weakens legal liability
Mary Sigler, Professor of Law, Arizona State University College of Law, 2010, Florida State University Law Review,
Private Prisons, Public Functions, and the Meaning of Punishment, p. 156
The challenge of drafting sufficiently detailed contracts points to a further set of concerns relating to privatizationdemocratic accountability. Effective public oversight and control requires transparency in the contracting process as
well as detailed public disclosure regarding contract terms and performance. Where the privatization process lacks
mechanisms for specifying public goals and evaluating the quality of privately provided services, however, citizens
cannot make informed judgments about the performance of the contract-or of their elected officials. As one
commentator notes, "Self-government will not retain meaning if major decisions about public resources and the shape
of collective experiences occur without the knowledge or participation of the nation's citizens." Finally, to the extent
that the delegation of government functions to private actors diminishes legal liability, it weakens a powerful
mechanism for ensuring accountability in the exercise of public power.
Prison Labor
Private prisons encourage prison labor
Vicky Palaez, March 31, 2014, “The Prison Industry in the United States: Big
Business or a New Form of Slavery?”, http://www.globalresearch.ca/the-prisonindustry-in-the-united-states-big-business-or-a-new-form-of-slavery/8289
Prison labor has its roots in slavery. After the 1861-1865 Civil War, a system of “hiring out prisoners” was introduced
in order to continue the slavery tradition. Freed slaves were charged with not carrying out their sharecropping
commitments (cultivating someone else’s land in exchange for part of the harvest) or petty thievery – which were
almost never proven – and were then “hired out” for cotton picking, working in mines and building railroads. From
1870 until 1910 in the state of Georgia, 88% of hired-out convicts were Black. In Alabama, 93% of “hired-out” miners
were Black. In Mississippi, a huge prison farm similar to the old slave plantations replaced the system of hiring out
convicts. The notorious Parchman plantation existed until 1972.
During the post-Civil War period, Jim Crow racial segregation laws were imposed on every state, with legal segregation
in schools, housing, marriages and many other aspects of daily life. “Today, a new set of markedly racist laws is
imposing slave labor and sweatshops on the criminal justice system, now known as the prison industry complex,”
comments the Left Business Observer.
Who is investing? At least 37 states have legalized the contracting of prison labor by private corporations that mount
their operations inside state prisons. The list of such companies contains the cream of U.S. corporate society: IBM,
Boeing, Motorola, Microsoft, AT&T, Wireless, Texas Instrument, Dell, Compaq, Honeywell, Hewlett-Packard, Nortel,
Lucent Technologies, 3Com, Intel, Northern Telecom, TWA, Nordstrom’s, Revlon, Macy’s, Pierre Cardin, Target
Stores, and many more. All of these businesses are excited about the economic boom generation by prison labor. Just
between 1980 and 1994, profits went up from $392 million to $1.31 billion. Inmates in state penitentiaries generally
receive the minimum wage for their work, but not all; in Colorado, they get about $2 per hour, well under the minimum.
And in privately-run prisons, they receive as little as 17 cents per hour for a maximum of six hours a day, the equivalent
of $20 per month. The highest-paying private prison is CCA in Tennessee, where prisoners receive 50 cents per hour for
what they call “highly skilled positions.” At those rates, it is no surprise that inmates find the pay in federal prisons to
be very generous. There, they can earn $1.25 an hour and work eight hours a day, and sometimes overtime. They can
send home $200-$300 per month.
Thanks to prison labor, the United States is once again an attractive location for investment in work that was designed
for Third World labor markets. A company that operated a maquiladora (assembly plant in Mexico near the border)
closed down its operations there and relocated to San Quentin State Prison in California. In Texas, a factory fired its 150
workers and contracted the services of prisoner-workers from the private Lockhart Texas prison, where circuit boards
are assembled for companies like IBM and Compaq.
Racism
Blacks and Hispanics overrepresented in private prisons
Rina Pinalta, March 31, 2014, “Why For-Profit Prisons House More Inmates of
Color,” http://www.npr.org/blogs/codeswitch/2014/03/13/289000532/why-for-profitprisons-house-more-inmates-of-color
A new study by a UC-Berkeley graduate student has surprised a number of experts in the criminology field. Its main
finding: Private prisons are packed with young people of color.
The concept of racial disparities behind bars is not exactly a new one. Study after report after working group has found
a version of the same conclusion. The Sentencing Project estimates 1 in 3 black men will spend time behind bars during
their lifetime, compared with 1 in 6 Latino men and 1 in 17 white men. Arrest rates for marijuana possession are four
times as high for black Americans as for white. Black men spend an average of 20 percent longer behind bars in federal
prisons than their white peers for the same crimes.
These reports and thousands of others have the cumulative effect of portraying a criminal justice system that
disproportionately incarcerates black Americans and people of color in general.
African-American studies Ph.D. student Christopher Petrella's finding in "The Color of Corporate Corrections,"
however, tackles a different beast.
Beyond the historical overrepresentation of people of color in county jails and federal and state prisons, Petrella found,
people of color "are further overrepresented in private prisons contracted by departments of correction in Arizona,
California and Texas."
This would mean that the racial disparities in private prisons housing state inmates are even greater than in publicly run
prisons. His paper sets out to explain why — a question that starts with race but that takes him down a surprising path.
Violence
The private prisons maintains its relationship to the state while discharging its most
violent functions
Ahmed White, 2001, Associate Professor of Law, University of Colorado School of Law; J.D., Yale University School
of Law, 1994, American Criminal Law Review, 38 Am. Crim. L. Rev. 111, Rule of Law and the Limits of Sovereignty:
The Private Prison in Jurisprudential Perspective, p. 144-5
To a certain degree, this Article's critique might seem more an indictment of privatization as such. Indeed, I am
admittedly skeptical about most instances of privatization. But because my arguments against the privatization of
prisons focus on the sovereignty-restraining ambition of the rule of law and on the perversion of this ambition by the
diffusion and extension of sovereignty, my claims in this Article are primarily applicable to privatization where two
factors are present: (1) where the institution in question discharges extreme--that is, especially coercive or violent-sovereign functions; and (2) where the privatized institution retains an especially close connection to the state, the state's
interests and its functions. Such characteristics are, as we have seen, especially evident with the private prison.
To some extent, of course, virtually all institutions that can be privatized are coercive and entail the exercise of
sovereign-like functions and functions which otherwise could be performed by the state. To some extent, one also might
argue, virtually all privatizations remain connected to the state. Such statements parallel the truth, so well exposed by
critical legal scholars, that the public-private distinction never is complete in any given direction anyway. Accordingly,
it is quite impossible to rigidly circumscribe the limits of this Article's critique. Nevertheless, significant quantitative
differences prevail between the levels of coercion, of sovereignty, and of state presence evident with prisons versus, for
example, schools and utilities. In other words, the prison is unquestionably extraordinary in its level of coerciveness and
in its extreme representation of sovereignty. Therefore, whether or not other types of privatization are problematic (and
again I think that they usually are), there are specific reasons why the private prison is especially problematic from a
rule of law standpoint.
As is the case in all contexts where the fate of liberal legal norms are at stake, the benefits accorded by adhering to
the rule of law where prisons are concerned are relative and contingent. The public prison remains intensely problematic
and in many ways inherently irrational. Rather than offering some romanticized defense of the public prison, I conceive
of this critique as a way of suggesting that there are inherent, structural reasons to suppose that private prisons will
always, on the whole, remain more dysfunctional and indeed more socially malignant than public prisons. But perhaps
more fundamental from a rule of law standpoint is the idea that at least the public prison is transparently problematic
and irrational, and at least it requires the state to face directly the political, legal, and fiscal costs of pursuing a criminal
justice policy that has brought about almost exponential increases in the rate and the aggregate number of people
incarcerated. Indeed, in a society that claims a basis in rule of law norms, it is probably always a good thing for the state
to wage its own wars against its citizens and to do so in an obvious and maximally costly way.
Democracy
Contracting out services allows legislators to avoid blame
Jody Freeman, 2000, Professor of Law, University of California Los Angeles, Florida State University Law Review,
The Contracting State, p. 156
Widespread contracting out of services or arguably "public" functions could have dire consequences under some
circumstances--if legislatures systematically outsource their traditional functions and use contracts with private parties
to insulate decisions from constitutional scrutiny, for example. Contracting could obscure traditional lines of
accountability, enabling legislatures to take credit for doing little, while blaming private contractors for program
failures.
Reduced Services
Contract models encourage prisons to cut services
Sharon Dolovich, Professor of Law, UCLA School of Law, 2005, Duke Law Journal, December, State Punishment and
Private Prisons, p. 474-5
C. A Thought Experiment: The Profit Motive Unconstrained
To determine how for-profit private prisons might be expected to operate absent effective restraints on contractors'
profit motive, consider the current structure of private prison agreements. Under the current system, the state agrees to
pay a flat rate per inmate per day, and the contractor agrees to bear all the costs of running the prison. If the contractor is
to make money, it must meet this contractual obligation for less than it earns from the state.
Private prison contracts thus contain a built-in incentive for the contractor to economize in two key respects. First,
contractors will be tempted to reduce the amount spent on meeting inmates' needs. In a prison, every aspect of inmates'
lives is dictated by the institution: when, what, and how much they eat; whether they get leisure time, adequate medical
care, protection from harm, or access to rehabilitative or educational programming; the content and design of their beds
and their cells; and when they shower and for how long. No detail of their lives remains unregulated. In a private prison,
each of these aspects of inmates' lives offers the potential for increasing profit margins. Absent effective checks, efforts
on the part of private prison administrators to cut operational costs could thus lead to decisions that deprive inmates of
basic human needs, a hallmark of inhumane punishment.
Second, profit-seeking contractors will be tempted to cut the cost of labor. As one industry observer explains,
because two-thirds or more "of a prison's budget goes to staffing and training," private providers "must reduce
expenditures in these areas if they are going to make a profit." How might such cost cutting lead to inhumane conditions
of confinement? The more effective correctional officers are at maintaining a secure prison environment, the safer the
inmates will be from the threat of physical assault. But guarding inmates requires constant interaction in a tense
atmosphere with people who are bored, frustrated, resentful, and possibly dangerous. To protect inmates from harm and
to ensure their own personal safety, correctional officers require training, experience, good judgment, and presence of
mind. But when such officers are overworked and undertrained, or work in prisons that are understaffed, they are at a
disadvantage in such a volatile environment and will thus be less effective at maintaining safe and secure prison
conditions. Money-saving strategies that include "hiring fewer staff members, paying lower wages, and reducing staff
training" thus increase the threat to inmates of physical assault, a further hallmark of inhumane punishment.
The foregoing account is likely to meet with two objections. First, some may object that it overlooks the potential
of contractors to find innovative ways to reduce the cost of labor and other necessities so as to allow a comfortable
profit margin without putting prisoners at risk. However, the existence of alternative avenues for profit making does not
mean that contractors would not also seek to increase profit further in the ways predicted, were they able to do so
without detection or penalty. There is, moreover, little evidence of cost-saving innovation in private-sector prisons. Nor,
given the nature of prison administration, is there much scope for such innovation in this arena consistent with the
humanity principle. Unlike Adam Smith's butcher, brewer, or baker, private prison administrators are not dealing with
inert materials. They are instead dealing in an extended and intimate way with human beings, whose treatment, if it is to
be humane, requires constant attention and the careful exercise of discretion. Running a prison is thus necessarily labor
intensive and affords little scope for more than marginal cost-saving innovation consistent with the humanity principle.
Second, some may object that the above account misunderstands the process of government contracting. Privately
managed prisons, after all, exist only at the behest of the state. If the state wants to ensure a certain level of service
provision, it need only specify its demands in the contract and hold the provider accountable. To achieve humane
conditions of confinement, in other words, the contractual terms need only specify as much.
To some extent this is true. Where the standard of service to be provided can be specified in detail in advance,
careful drafting can provide some protection from abuses. But with respect to many key features of prison life that are
crucial from the humanity perspective - the use of force, health care provision, inmate classification, discipline, and
inmate safety, among others - it can be difficult to specify in advance precisely how they are to be provided. n149 To a
significant extent, that is, private prison contracts are necessarily "incomplete," meaning that the contractor's obligations
cannot be fully specified in the contract itself.
The inevitable incompleteness of private prison contracts raises two difficulties for efforts to rely on careful
drafting alone to check contractor abuses. First, the necessarily vague character of incomplete contracts makes
violations difficult to demonstrate and thus difficult to police. Second, because they are incomplete, prison contracts
accord considerable discretion to contractors. This discretion comes in the form of what some economists call "residual
control rights," which carry "the authority to approve changes in procedure or innovations in uncontracted-for
contingencies." From the standpoint of prison administration, this allocation makes sense. Consider, for example the use
of force. Plainly, it is not possible to spell out in advance every contingency within a prison that will require the use of
force by correctional officers. Prison employees thus need discretion to use force when they think it warranted, for it is
they who face an unpredictable environment and must make the hard judgments when potentially dangerous situations
arise. Still, the extensive discretion necessarily lent by incomplete prison contracts to both line officers and prison
administrators opens up space for these parties to use force against inmates in ways at odds with the demands of the
humanity principle while still formally fulfilling the contract's terms. Thus, even carefully drafted contracts cannot
prevent many decisions by private contractors that might yield inhumane conditions of confinement.
There is, moreover, a further problem with relying on contract drafting alone to guard against possible contractor
abuses. Even assuming the possibility of specifying contractual standards consistent with the humanity principle, the
"hidden delivery" of prison services means that contractual violations may well go undetected. Imagine, for example, a
contractual provision capping the number of assaults on inmates that may occur annually in the facility. n155 To
determine compliance with this provision, it is necessary for the state to have access to reliable data on such assaults.
Yet private prison administrators are the ones who control access to this information, and they have a strong financial
incentive to downplay the number of assaults that actually occur, particularly if this number exceeds contractual
specifications. Thus, even assuming a contract that carefully delineated the maximum number of assaults, contractor
control over the information necessary to effectively implement these contractual provisions could defeat this effort at
regulation through contract.
Private prisons provide inadequate health care
Cody Mason, 2012, The Sentencing Project, Too Good to Be True: Private Prisons
in America,
http://sentencingproject.org/doc/publications/inc_Too_Good_to_be_True.pdf
Private prison companies have also been cited for endangering inmates by providing inadequate
healthcare services. In 2001 a Florida grand jury found that CCA facility staff, including a nurse,
“failed to demonstrate adequate health training,” which contributed to the death of an inmate who
swallowed several Ecstasy pills.68 Another complaint against CCA’s medical services involved an
inmate who died after officials allegedly refused to fill a $35 prescription for his hereditary
angioedema.69 An independent report to the Mississippi Department of Corrections found that the
GEO-run Eastern Mississippi Correctional Facility inappropriately downgraded mental health
diagnoses, discontinued medicine, failed to clean feces and blood out of cell units, and rarely
provided mental health care, even when requested.
Any cost reduction is at a lost of services
Cody Mason, 2012, The Sentencing Project, Too Good to Be True: Private Prisons
in America,
http://sentencingproject.org/doc/publications/inc_Too_Good_to_be_True.pdf
Even if private prisons can manage to hold down costs, this success often comes at the detriment of
services provided. Nationwide, public funds for prisons are already limited, leaving little excess
spending that can be cut. Therefore, private prisons must make cuts in important high-cost areas
such as staff, training, and programming to create savings.106 The pressure that companies feel to
maintain low overhead costs combined with less direct oversight are likely what led researchers at
the University of Utah to conclude that, “quality of services is not improved” in private prison
Private prisons have lower skilled staff
American Civil Liberties Union, 2011, Prisons for Profit: A look at prison
privatization,
http://www.acluohio.org/assets/issues/CriminalJustice/PrisonsForProfit2011_04.pd
f
Private prison companies cut costs by hiring cheaper, lower-skilled staff and fewer of them. The
result is a vicious cycle where poorly trained and poorly disciplined corrections officers are
incapable of adequately responding to prison emergencies. Prison safety conditions deteriorate, and
more staff quit, increasing the turnover rate.
Safety
Private prisons have fewer staff and more assaults on staff
US Department of Justice, 2001, Emerging Issues on Privatized Prisons,
https://www.ncjrs.gov/pdffiles1/bja/181249.pdf
Results from previous studies show that privately operated prisons function similarly to publicly operated
prisons with respect to program and work participation by inmates and the distribution of staff by key
functional areas. Three exceptions to these findings are in the areas of staffing levels, management
information system (MIS) support, and critical incidents. Privately operated facilities have a significantly
lower staffing level than publicly operated prisons and lack MIS support. They also report a significantly
higher rate of assaults on staff and inmates.
Lower salaries in private prisons contribute to safety problems
Cody Mason, 2012, The Sentencing Project, Too Good to Be True: Private Prisons
in America,
http://sentencingproject.org/doc/publications/inc_Too_Good_to_be_True.pdf
Privately managed prisons attempt to control costs by regularly providing lower levels of staff
benefits, salary, and salary advancement than publicly-run facilities (equal to about $5,327 less in
annual salary for new recruits and $14,901 less in maximum annual salaries). On average, private
prison employees also receive 58 hours less training than their publicly employed counterparts.57
Consequently, there are higher employee turnover rates in private prisons than in publicly operated
facilities.58 These dynamics may contribute to safety problems within prisons. Studies have found
that assaults in private prisons can occur at double the rate found in public facilities.59 Researchers
also find that public facilities tend to be safer than their private counterparts and that “privately
operated prisons appear to have systemic problems in maintaining secure facilities.”60, 61
Specific events that have endangered prisoners include:
The Walnut Grove Youth Correctional Facility in Mississippi is currently under federal
investigation after receiving hundreds of brutality complaints.62 The facility, which is run by the
GEO Group, is also the subject of a federal lawsuit claiming that inmates “live in unconstitutional
and inhumane conditions and endure great risks to their safety and security” due to understaffing,
violence, corruption, and a lack of proper medical care.63
In May 2011, a CCA prison psychiatrist in Florida was accused of asking female inmates to give
him lap dances and to expose themselves. It is also alleged that he was offering to trade medication
for sex.64
CCA’s Idaho Correctional Center was accused of being run as a “gladiator school” in 2010.
Footage from the facility showed guards standing by as one inmate beat another into a coma. It was
alleged that staff members used violence and the threat of violence to gain leverage of inmates.65
In 2009, Hawaii Governor Linda Lingle announced plans to bring back all of the state’s 168
female prisoners being held in the CCA-run Otter Creek Correctional Center in Kentucky. The
governor made the decision over concerns of sexual abuse. The facility had a disproportionate
number of male workers for a female prison and was found to have four times the level of sexual
abuse compared to a state-run counterpart in 2007.66
In February 2007 an African man was left dying on the floor from a head injury for 13 hours at
the CCA-run Elizabeth Detention Center in New Jersey. At one time officials discussed sending the
body back to Guinea in order to deter the man’s widow from traveling to the U.S. and drawing
attention to the death.67
Expenditure reductions increase prison violence
Color of Change, November 3, 2014, End for-profit imprisonment,
http://colorofchange.org/campaign/end-profit-imprisonment/original_email/
Federal agencies and state governments contract with three main companies to lock people up: Corrections Corporation
of America (CCA), GEO Group, Inc., and the Management and Training Corporation (MTC). The top two prison
companies, CCA and GEO, are publicly traded and financed by investors, major banks and corporations, who hold
shares in the industry. CCA and GEO Group make money by charging a daily rate per body that is sent to them
— costing tax payers billions for dangerous, ineffective facilities. 5 The industry also makes money by avoiding tax
payments. CCA will dodge $70 million dollars in tax payments this year by becoming a real estate investment
trust (REIT) and designating their prisons as "residential".6
In order to maximize profits, prison companies cut back on staff training, medical care, and rehabilitative services —
causing assault rates to double in some private prisons.7 A 2010 ACLU lawsuit against CCA-run Idaho Correctional
Center cited a management culture so violent the facility is known as the "gladiator school". 8 The industry also
maximizes profits by lobbying for and benefiting from laws that put more people in jail. In the 1990's CCA chaired the
Criminal Justice Task force of shadowy corporate bill-mill, the American Legislative Exchange Council (ALEC), which
passed "3 strikes" and "truth in sentencing" laws that continue to send thousands of people to prison on very harsh
sentences.9 Black folks are disproportionately subjected to these uniquely harsh conditions due to our extreme
overrepresentation in the private prison system.10
In many parts of the country, the political tide is shifting against the for-profit prison industry. Earlier this summer,
Kentucky, Texas, Idaho, and Mississippi broke ties with CCA after reports of chronic understaffing, inmate
death, and rising costs to the states became undeniable.11 In April, New Hampshire rejected all private prison bids
because the prison corporations could not show that they would follow legal requirements for safely housing
prisoners.12 And, there is growing opposition to California Governor Jerry Brown's misguided plan to comply with a
Supreme Court order to alleviate the State's prison overcrowding crisis by moving thousands of prisoners into private
facilities, at a public cost of $1 billion over 3 years. 13
Rehabilitation
Private prisons encourage harsh prison laws and undermine rehabilitation
Lucas Anderson, 2009, is a J.D. candidate at The George Washington University
Law School and a member of the Public Contract Law Journal, Public Contract Law
Journal, https://www.prisonlegalnews.org/news/2009/dec/15/kicking-the-nationalhabit-the-legal-and-policy-arguments-for-abolishing-private-prison-contracts/
1. Harsh Criminal Laws Benefit the Private Prison Industry
The growth of private prison companies depends on rising incarceration rates and strict criminal
sentencing laws.87 As “clients” of the private prison system, inmates are the main source of
revenue to the companies responsible for their treatment and rehabilitation. To generate steady
profits, these companies require a continual supply of new clients (first-time convicts) and a base of
frequent, dependable clients (recidivist convicts). Fortunately for the private prison industry, these
twin goals have been made possible by high criminal recidivism rates88 and the widespread
adoption of “get tough” mandatory sentencing laws. Private prison companies are not simply
passive recipients of these windfall-generating phenomena. Instead, recognizing the benefits they
receive from strict sentencing laws and high recidivism rates, they actively seek to ensure that
these trends continue despite harmful effects on the inmates, the Government, and society as a
whole.90 Lobbying efforts, both direct and indirect, reflect private prison companies’ policy
preferences in terms of criminal sentencing measures. The private prison lobby is active at the
federal level and in many states, bankrolling favorable candidates’ political campaigns and
supporting “think tank” policy initiatives. For example, during the 1998 election cycle, private
prison companies contributed more than $540,000 to 361 candidates in twenty-five states, eightyseven percent of whom won their elections.93 In 2000, approximately forty percent of state
legislators were members of the American Legislative Exchange Council (ALEC), a policy advocacy
group that promotes model legislation such as minimum mandatory sentencing requirements and
three-strikes, habitual offender statutes.94 ALEC receives the majority of its funding from corporate
interests, including large contributions from private prison companies such as CCA.95
Aside from these traditional advocacy methods, some private prison companies have pursued
underhanded and illegal tactics in their attempts to influence lawmakers. In 2003, a probe by the
New York State Lobbying Commission found that Correctional Services Corporation (CSC) had
illegally provided free chauffer-driven transportation to several state lawmakers for at least a fouryear period.96 In Alaska, the founder of several private halfway houses was recently sentenced to
six months in federal prison for paying a legislative candidate at least $20,000 to support
construction of a new private facility in the state. Instances of self-serving bribery are not limited to
schemes that seek to affect broad policy change or embed a general preference for corrections
privatization. In early 2009, it was discovered that a private juvenile detention center paid two
Pennsylvania judges $2.6 million over five years to reject pleas for leniency and alternative
punishments for hundreds of teens. In exchange, the local public facility was shut down by one
judge, who controlled the budget, and the teens were then sentenced by the other judge to serve
time in PA Child Care, a private company’s facility. Although these accounts do not reflect the bulk
of the private prison industry’s lobbying efforts, they are not extraordinarily rare.100 The tensions
between private prison companies’ financial interests and legitimate penal functions are evident.
The financial success achieved by private prison companies comes at a steep cost to the inmates,
their families, the Government, and society as a whole.
2. Harsh Criminal Laws Do Not Reduce Crime Rates or Benefit Society
Available evidence largely refutes the contention that tough criminal measures benefit society by
reducing crime rates and deterring criminals. Removing criminal offenders -- many of whom are
imprisoned for drug charges or other nonviolent offenses -- from society for long periods of time
and placing them in crowded, dangerous, and unhealthy conditions with other criminals often has
negative aggregate effects on recidivism rates. Lengthy prison sentences impair inmates’ ability to
obtain legitimate employment once they are released, increasing their incentive to revert to
criminal behavior.103 Long periods of incarceration weaken inmates’ family ties, alienate them
from positive social influences, and increase the likelihood that they will contract AIDS or other
drug-resistant diseases.104 The purported social or rehabilitative benefits of “get tough”
sentencing measures are largely nonexistent; excessively punitive criminal laws advantage only
those in the private prison industry.
3. Effective Rehabilitation Programs Decrease Recidivism Rates, Impacting Private Prison
Companies’ Revenue
In 2005, researchers Patrick Bayer and David Pozen found that in juvenile corrections systems,
“[r]elative to all other management types, for-profit management leads to a significant increase in
recidivism.” The difference in quality among inmate rehabilitation programs in public and private
prisons illustrates yet another symptom of the divergent motivations affecting public and private
prison operators. “A for-profit prison operator [has] almost no contractual incentive to provide
rehabilitation opportunities or educational or vocational training that might benefit inmates after
release, except insofar as these services act to decrease the current cost of confinement.”
Programs common to public facilities such as substance addiction treatment, vocational education,
and sentence credits for good behavior are largely nonexistent in private prisons. Where private
companies do establish rehabilitation programs, often as the result of contractual requirements,
they maintain a financial interest in ensuring that they are poorly administered. Successful
rehabilitation efforts would encourage private prison companies’ best “clients” to leave early and
to fail to return. Also, the costs of implementing and administering effective programs would
undercut a private prison’s immediate bottom line. The findings of the Bayer and Pozen study
demonstrate how private prison companies encourage recidivism by actively neglecting or
discouraging rehabilitative programs. Instead of encouraging inmates to leave prison free of
addiction, with quality vocational training, and a desire to become productive citizens, the profit
motive behind private prison companies seeks to ensure that the inmate returns to prison as
quickly as possible.
C. The Purported Short-Term Economic Benefits of Prison Privatization Are Offset by Long-Term
Economic Costs
Advocates of prison privatization argue that as a product of market competition and the efficiency
of the private sector, private prisons are cheaper to operate than their public counterparts.
However, in a 1996 study, the General Accounting Office found that studies comparing costs of
private and public prisons “do not offer substantial evidence that savings have occurred” under
privatization contracts.112 In 2005, it was found that the state of Arizona actually paid private
contractors $11 per prisoner per day more than the average daily costs of state-operated prisons,
totaling approximately $4.1 million in extra spending by the state per year. Aside from immediate
financial concerns, lawmakers should consider the long-term indirect financial costs that arise out
of privatization arrangements. Increased criminal recidivism among inmates in private institutions
presents perhaps the largest hidden financial cost of privatization. The Bayer and Pozen study
comparing private and public juvenile facilities found that a “cost-benefit analysis implies that the
short-run savings offered by for-profit facilities over nonprofit facilities are reversed in the long run
due to increased recidivism rates.”This conclusion holds even when one ignores the noneconomic
harms associated with high recidivism rates and only accounts for direct financial costs.
Another indirect cost of privatization arises from compliance monitoring and enforcement
procedures that are necessary to ensure minimal compliance with contractual requirements.
Privatization advocates claim that a lack of redundant bureaucracy in private prisons brings down
their overall operating costs relative to public prisons. However, rather than reducing levels of red
tape that would otherwise exist in a purely public system, private prison systems require costly
monitoring and enforcement procedures to keep the symptoms of profit maximization in check as
much as possible. This necessitates an additional layer of bureaucracy and aggravates governments’
overall corrections expenditures. Finally, the costs associated with legal challenges stemming from
the actions of private prison employees aggravate contracting governments’ corrections budgets
even further. Although the Government enjoys qualified immunity against lawsuits arising under 42
U.S.C. 1983, the Supreme Court has held that this immunity does not extend to employees of
private prison companies. Litigation expenses, settlement agreements, and adverse court
judgments against private prison operators and their employees augment the Government’s
expenses by way of contract pricing increases and a higher degree of liability exposure than would
exist under a purely public system. These additional indirect financial costs seriously undermine the
economic argument in favor of private prison contracts and demonstrate why the privatization
“solution” has so far failed to ease governments’ corrections budgets.
Private prisons don’t support rehabilitation necessary to reduce recidivism
American Civil Liberties Union, 2011, Prisons for Profit: A look at prison
privatization,
http://www.acluohio.org/assets/issues/CriminalJustice/PrisonsForProfit2011_04.pd
f
Another benefit prisons should provide the community is inmate rehabilitation. Not only does it cost
the taxpayer directly to keep an inmate in prison, it also costs the taxpayer more indirectly when
inmates are released back into society without any ability to survive and function as productive,
law-abiding citizens. Supporters of prison privatization sometimes claim that privately operated
prisons have more of an incentive than state-run prisons to maintain the quality of the environment
in which they keep their inmates and to develop rehabilitation programs that will reduce inmate
recidivism. They reason this because private prisons risk losing the state contract to operate the
facility if it fails to show results.80 Studies comparing the recidivism rates of inmates in public and
private risons, have been inconclusive. However, states with the most private prisons do not have
the lowest recidivism rates. Ohio’s prisons are, with the exception of two facilities, entirely stateoperated. Only 4.4% of Ohio inmates are in private beds.81 States with much higher percentages of
inmates in private beds have significantly higher recorded recidivism rates. The five states with the
highest percentage of privatized prisons are New Mexico, Montana, Alaska, Vermont, and Hawaii.82
According to 2005 statistics, four out of the five states had higher three-year recidivism rates than
Ohio. 2005 data was not available from New Mexico, but its 2007 three-year recidivism rate of 43%
was higher than Ohio’s 2007 rate of 34%. Privatizing more of Ohio’s prisons will likely increase
Ohio’s comparatively low recidivism rates because privately run prisons have consistently proven
not to invest in the types of programs and services that public prisons invest in order to enable their
inmates to function in society upon their release. The same Minnesota study that interviewed
inmates at public and private facilities about prison safety and staff training also interviewed them
about the programs and services the facilities offered them. Seventy percent of the state-run DOC
inmates reported having received HIV/AIDS education compared to zero of the private, CCA-run
PCF inmates.90 DOC inmates “were more likely [than PCF inmates] to report that participation in
educational classes had proved very helpful to them, personally” and “gave significantly higher
overall ratings to the educational programs available in their facilities” than PCF inmates.91 The
drug and alcohol treatment programs at PCF consisted of 1-3 hour counseling sessions that occurred
weekly, while most of the DOC prisoners reported benefitting from “full-time, highly structured
‘therapeutic community’ treatment programs.”92 Typical of the DOC experience is one inmate’s
report that the DOC prison taught me how to read, how to evaluate my anger, how to understand
myself — it has made big changes and improvements in my life.”93 Typical of the PCF experience
was one inmate’s statement that “I have learned nothing here.”
A comparison of the programs and services available to inmates at Ohio’s two private facilities with
those available to inmates at its state-run facilities suggests a similar dynamic at play and
underscores the importance of health care — both physical and mental — in providing inmates the
treatment necessary for their successful reintegration into society.
Lake Erie Correctional Institute and North Coast Correctional Treatment Facility have no trauma
recovery programs, no contract or grantfunded job-training programs, and no programs addressing
mental illness, disease management, general health, or sex offender issues.94 More troubling is the
fact that, despite the many requests by inmates at these facilities for medical attention by a licensed
physician (as opposed to a nurse), none of them were sent off-site to the Ohio State University
emergency room, whereas inmates in other, state-run facilities were.95
It is possible that the two facilities have been seeking to cut costs by relying on “telemedicine,” a
private technological service that public and private prisons alike in Ohio have been using since the
1990s. With telemedicine, inmates receive medical treatment from nurses or non-specialist doctors
who receive treatment instructions from off-site specialists via a video teleconferencing device.96 It
is important to remember the elemental fact that recidivism is good for private prisons. The more
people are returned to prison, the more business private prisons get. A 2008 study published by
Crime and elinquency found that “private prison inmates had a greater hazard of recidivism in all
eight models tested, six of which were statistically significant.”97 A 2005 study of juvenile prisons
published in the Journal of Law and Economics found that private prisons increased costs by
promoting recidivism. Juveniles in private prisons were more likely to commit further crimes and be
imprisoned again.
In purely financial terms – without giving any weight to the social harm caused by increased
recidivism – the additional costs of increased future confinement alone exceeded any short-term
savings offered by private prisons.98 The study found that private prisons had “no contractual
incentive to provide rehabilitation opportunities or educational/vocational training that might
benefit inmates after release, except insofar as these services act to decrease the current cost of
confinement.”
Private prisons threaten the interests of prisoners and undermine rehabilitation
Lucas Anderson, 2009, is a J.D. candidate at The George Washington University
Law School and a member of the Public Contract Law Journal, Public Contract Law
Journal, https://www.prisonlegalnews.org/news/2009/dec/15/kicking-the-nationalhabit-the-legal-and-policy-arguments-for-abolishing-private-prison-contracts/
Privatization overall negatively impacts the treatment, rehabilitation, and care
of prisoners, indicating that the market-driven business model is fundamentally
incompatible with an effective and humane corrections system.12 There are
several reasons for this tension. First, private prison companies are primarily
profit-seeking entities, working to reduce costs wherever possible. Cost-cutting
measures promote inferior contract performance, undue safety risks, and poor
delivery of inmate services.13 The profit motive also encourages private prison
companies to disregard the principles of inmate rehabilitation and criminal
deterrence; if advanced, these principles would undermine profits and reduce the
demand for these companies’ services.14 Finally, to expand their markets,
private prison operators are exhorted to advance harsh criminal sentencing
policies and to dilute early-release, parole, and good-behavior programs within
their facilities.15 All of these market-based incentives, as applied to the
field of corrections, operate to the detriment of the Government, prison
inmates, and society as a whole.16
Private Prison Lobby Bad
Private prison lobby pushes for increased incarceration
Sharon Dolovich, Professor of Law, UCLA School of Law, 2005, Duke Law Journal, December, State Punishment and
Private Prisons, p. 523-4
C. Influencing Incarceration Rates from the Outside: "The Most Powerful Lobby You've Never Heard Of" n338
The private prison industry, to increase the demand for its services, exerts whatever pressure it can to encourage state
legislators to privatize state prisons. This effort does not necessarily suggest a parsimony concern, for the fact of
privatization alone need not affect the number of individuals who are actually incarcerated or the length of prison
sentences. But what if the private prison industry were exerting political pressure on state legislators not only to
encourage a shift to privatization, but also to generate harsher sentencing regimes? This would create the possibility that
the state's sentencing policies, and thus the sentences imposed pursuant to them, are inconsistent with the priority of the
most urgent interests and instead serve the financial interests of the private prison industry and the politicians who
accept campaign contributions from industry members. By creating an industry capable of, and with an interest in,
corrupting the legislative conditions for legitimate punishment, the state's use of private prisons would be directly at
odds with the demands of the parsimony principle.
Given the financial interest of private prison providers in increased incarceration rates, it would not be unexpected
if the industry did seek to influence legislation in this direction. Interestingly, however, although the industry is adept at
lobbying legislators and targeting campaign contributions to promote its privatization agenda, there is little evidence of
any such efforts in support of harsher criminal sentencing schemes. Some commentators, noting this fact, have argued
that the private prison industry has no need to push for stiffer sentences. They suggest that by the time the industry
emerged in the mid-to-late 1980s, the prisons were filling up so quickly as a result of other, unrelated forces that prison
contractors have not needed to undertake any deliberate efforts to ensure continued demand for their services.
However, even if demand for prison space is currently sufficient to ensure the financial position of private prison
operators, there is no guarantee that the same will be true in the future. Here, the analogy of the U.S. defense industry,
suggested by J. Robert Lilly and Matthew Deflem, may be instructive. After the Cold War, military contractors in the
United States suffered a decline in the demand for their services. In response, explain Lilly and Deflem, members of this
group "successfully lobbied for governmental concessions and support in the form of changes in the guidelines for
selling arms to foreign customers." Previously, military contractors only received U.S. government approval for foreign
arms sales when the sales were found by state officials to "support[] American foreign policy goals and strengthen[]
regional alliances." However, after successful lobbying by the industry hoping to expand its markets in a period of
declining American investment in defense, the guidelines for such sales were amended, and they now "require that the
U.S. government also consider their benefits to the nation's military contractors."
In other words, it was not until economic opportunities for defense contractors began to shrink that the industry
began pressuring legislators to generate policies consistent with its corporate interests. This experience suggests that
even if private prison providers have had no need as yet to pressure state legislators to shape sentencing policies
consistent with their financial interests, these conditions are subject to change. Ultimately, the worry is that, as in the
case of the defense industry, the power, wealth, and political connections of the corrections industry may mean that
"concerns for profit, efficiency, competition, and money may radically alter the ... normative goals [of the corrections
domain]."
The defense industry analogy suggests that a lack of evidence as to present efforts to unduly influence sentencing
policy does not necessarily mean that the parsimony concern is misplaced in the context of private prisons. It is,
moreover, not so clear that the private prison industry has not yet taken steps to promote the adoption of statutes likely
to increase the size of the prison population. Although industry members have taken little overt action in this direction,
at least two private prison firms - industry leaders CCA and Wackenhut - have for some time been "private sector
members" of a little-known organization called the American Legislative Exchange Council (ALEC). ALEC is an
unusual organization. It takes no public credit for its legislative successes, instead preferring to maintain a low profile.
Its main function is the drafting of model legislation, which its legislator-members take back to their home jurisdictions
and do their best to turn into law. In 2000 alone, over 3,100 bills based on ALEC's model legislation were introduced
into legislatures by its members, with 450 such bills signed into law. This success is a function of the sheer number of
legislators from around the country who are members of ALEC - 2,400, almost a third of all state and federal legislators
nationwide.
With minimum annual dues of $ 5,000, corporations and trade associations can also become ALEC members.
Upon further payment of "applicable Task Force Dues" (ranging from $ 1,500 to $ 5,000 annually), private-sector
members can join the task force of their choice n353 and participate in drafting the model legislation that public-sector
members will introduce to their respective legislatures.
According to ALEC itself, the criminal justice task force has been among the organization's most successful
working groups. Its successes have included the passage in forty states of ALEC-sponsored "truth in sentencing"
statutes, mandating that convicted offenders serve at least 85 percent of their sentences before being eligible for parole,
and the passage in at least eleven states of three-strikes laws, which impose mandatory minimum sentences of anywhere
from twenty-five years to life for offenders convicted of a third serious offense. Although ALEC takes care to obscure
the role played by corporations standing to benefit from its legislative initiatives, it is known that both CCA and
Wackenhut Corrections have been private-sector members of ALEC, that both have been among its "major
benefactors," and that at least CCA has participated in the drafting sessions of ALEC's criminal justice task force,
including, reportedly, that session which produced ALEC's model truth-in-sentencing bill. Indeed, this task force has
been cochaired by representatives from CCA at least twice, once by John Rees, a CCA vice president, and once by Brad
Wiggins, CCA's director of business development.
It is impossible to know what direct role, if any, representatives of CCA and/or Wackenhut have played in the
drafting and promotion of ALEC-sponsored legislation likely to expand the prison population. It is clear, however, that
each company pays thousands of dollars in annual membership dues for a seat at the drafting table with influential
legislators. They do so, furthermore, under the auspices of an organization committed to policies certain to increase
prison populations nationwide in a way that is consistent with the contractors' own financial interests. This fact at the
very least makes skepticism appropriate regarding the claim that private prison providers take no part in promoting
legislation that puts upward pressure on incarceration rates. Moreover, it reveals that, should these leading members of
the private prison industry see a financial benefit to themselves in promoting harsher sentencing regimes, there are
channels through which they might effectively further these interests - channels that are conveniently out of public
view. Given the distaste with which the public might well react to the notion of private prison contractors lobbying for
stiffer criminal penalties - a move that would suggest a cynical willingness to lock more people up for longer periods so
that CCA and its fellow industry members might profit financially - their involvement in ALEC may signal, not a lack
of interest in promoting such legislation, but a recognition that such efforts might best be undertaken behind closed
doors.
The link between CCA, Wackenhut, and ALEC's criminal justice initiatives provides no concrete evidence of
undue influence over sentencing policy on the part of private prison providers. It nonetheless effectively illustrates the
tension between the state's use of private prisons and the demands of the parsimony principle's integrity condition. At
the heart of this condition is the imperative that the state do all it can to secure the conditions of legitimate punishment
and to avoid taking steps likely to corrode these conditions. Yet the state, through the use of private prisons, not only
allows but facilitates the growth of an industry with a "direct, personal, substantial, pecuniary interest" in increased
incarceration rates regardless of the demands of legitimate punishment, with no particular commitment to ensuring
legitimate punishment, and with direct access to powerful legislators through both public and back channels. Viewed in
this light, it is hard not to see the state's support of the private prison industry as inviting the possibility that this
constituency will exercise undue influence on sentencing policies. Under these circumstances, especially given the
extent of the campaign donations given by the private prison industry to key legislative players, citizens may well
wonder about the legitimacy of sentencing policies and the punishments imposed pursuant to them. And this suspicion
is likely to be strongest in communities most vulnerable to state punishment of any sort - those communities that
themselves enjoy little political access or influence.
Private prison lobbyists promote a fear of crime that increases imprisonment
Mary Sigler, Professor of Law, Arizona State University College of Law, 2010, Florida State University Law Review,
Private Prisons, Public Functions, and the Meaning of Punishment, p. 160-1
A further source of concern arising from the private prison market is the role of lobbyists. Apart from the usual
worries about the use of campaign contributions to curry favor with elected officials or the potential for self-dealing,
prison industry lobbyists may play an even more pernicious role-developing and promoting criminal justice policies
solely to advance their financial interests. The most widely reported example is the American Legislative Exchange
Council, a Washington-based policy organization heavily funded by the two leading private prison firms, which
successfully promoted such get-tough sentencing laws as "three-strikes" and "truth in sentencing." n62 These and
similar policies contributed substantially to increased demand for private prison beds-and to the need for contracting
out. Indeed, private firms, as rational actors subject to market pressures, have every incentive to pursue such a strategy.
As one commentator cautions, "[w]e should . . . be wary that private-corrections corporations may initiate advertising
campaigns to make the public feel more fearful of crime than it already is, in order to fill the prisons and jails." n63
For profit prison industries lobbies for incarceration
Color of Change, November 3, 2014, End for-profit imprisonment,
http://colorofchange.org/campaign/end-profit-imprisonment/original_email/
The United States incarcerates more people than any other country in the world, and the private prison industry is
making a killing off this broken system. For-profit prison companies get paid for each person that fills their cells —
raking in $5 billion in annual revenue.1 Empty beds mean lost profits, so to keep the money flowing the industry
spends millions lobbying the government to expand the destructive policies that keep more people behind bars
for longer, harsher sentences.2
Tragically, one-third of all Black men will spend part of their lives in prison.3 Meanwhile, for-profit prisons
promote and exploit mass incarceration and racial-bias in the criminal justice system — further accelerating our nation's
prison addiction. We can stop this. The prison industry depends on corporate backers for the capital it needs to
keep growing,4 and allies in government for contracts that fill their prisons. If we convince enough investors and
board members to leave the industry, we can discredit incarceration as a business, bring attention to the harm it creates,
and deter public officials from granting contracts to prison companies.
Increased Incarceration
Private prisons encourages incarceration
Vicky Palaez, March 31, 2014, “The Prison Industry in the United States: Big
Business or a New Form of Slavery?”, http://www.globalresearch.ca/the-prisonindustry-in-the-united-states-big-business-or-a-new-form-of-slavery/8289
What has happened over the last 10 years? Why are there so many prisoners?
“The private contracting of prisoners for work fosters incentives to lock people up. Prisons depend on this income.
Corporate stockholders who make money off prisoners’ work lobby for longer sentences, in order to expand their
workforce. The system feeds itself,” says a study by the Progressive Labor Party, which accuses the prison industry of
being “an imitation of Nazi Germany with respect to forced slave labor and concentration camps.”
The prison industry complex is one of the fastest-growing industries in the United States and its investors are on Wall
Street. “This multimillion-dollar industry has its own trade exhibitions, conventions, websites, and mail-order/Internet
catalogs. It also has direct advertising campaigns, architecture companies, construction companies, investment houses
on Wall Street, plumbing supply companies, food supply companies, armed security, and padded cells in a large variety
of colors.”
According to the Left Business Observer, the federal prison industry produces 100% of all military helmets,
ammunition belts, bullet-proof vests, ID tags, shirts, pants, tents, bags, and canteens. Along with war supplies, prison
workers supply 98% of the entire market for equipment assembly services; 93% of paints and paintbrushes; 92% of
stove assembly; 46% of body armor; 36% of home appliances; 30% of headphones/microphones/speakers; and 21% of
office furniture. Airplane parts, medical supplies, and much more: prisoners are even raising seeing-eye dogs for blind
people.
For profit prisons encourage incarceration
American Civil Liberties Union, 2011, Prisons for Profit: A look at prison
privatization,
http://www.acluohio.org/assets/issues/CriminalJustice/PrisonsForProfit2011_04.pd
f
Prisons for profit are different from public institutions because they must generate revenues for
their shareholders. As a result, they have a direct interest in ensuring that Ohio’s prison system stays
full to maximize its profitability.
Private prisons pursue more disciplinary infractions to maximize incarceration
American Civil Liberties Union, 2011, Prisons for Profit: A look at prison
privatization,
http://www.acluohio.org/assets/issues/CriminalJustice/PrisonsForProfit2011_04.pd
f
A 1992 study by the New Mexico Corrections Department showed that guards at a private CCA-run
women’s correctional facility were pressured to issue disciplinary infractions to inmates that
resulted in prolonging their incarceration out of a desire on the part of CCA executives to maximize
quarterly dividends and satisfy shareholders. As a result, “inmates at the women’s prison run by
CCA lost good time at a rate nearly eight times higher than their male counterparts at a state-run
lockup.”45
Private Prisons Escape Oversight
Private prisons subject to less monitoring and scrutiny
David Fathi, 2010, Director, National Prison Project of the American Civil Liberties Union Foundation, THE
CHALLENGE OF PRISON OVERSIGHT, American Criminal Law Review, Fall, p. 1461-2
Approximately eight percent of all U.S. prisoners, and fifteen percent of federal prisoners, are housed in privately
operated correctional institutions, making these facilities a significant and growing part of the correctional landscape.
Private facilities present a special oversight problem. While the profit motive may increase the temptation to cut corners
on staffing, medical care, and other essential services, private prisons are subject to even less scrutiny than their public
counterparts. As private corporations, they are typically not subject to open meeting and freedom of information laws
that apply to state and local departments of corrections.
Moreover, private prisons are shielded from judicial oversight in significant ways. Federal prisoners may not sue
private prison corporations for damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics
n60 ; two circuits have held that they may similarly not maintain a Bivens action against individual private prison
employees, at least if state tort law remedies exist. The Eleventh Circuit has recently held that private prison operators
are not "public entities" under the Americans with Disabilities Act, and therefore, unlike publicly operated prisons,
cannot be sued under Title II of that statute.
The Standards discourage the use of private prisons, at least for secure confinement: "[c]ontracts with private
corporations or other private entities for the operation of a secure correctional facility should be disfavored." When
private facilities are used, the Standards require multiple means of oversight, including applicability of freedom of
information laws; contract provisions for oversight; and on-site monitoring by the contracting agency.
CONCLUSION The United States is the world's leading jailer, with both the highest incarceration rate and the
largest incarcerated population in the world. Despite this unenviable distinction, prison oversight is markedly less
developed in the United States than in many other democracies. Moreover, recent developments, particularly the
passage of the Prison Litigation Reform Act, have significantly weakened oversight by the federal courts, historically
the main bulwark against mistreatment and abuse. The Standards point the way toward a multi-pronged enhancement of
oversight--both judicial and non-judicial--that would do much to civilize and humanize the prisons in which we hold so
many.
Many barriers to oversight of private prisons
Mike Tartaglia, 2014, October, Student of law at Boston University School of Law, PRIVATE
PRISONS, PRIVATE RECORDS, Boston University Law Review, p. 1696-7
C. Obstacles to Private Prison Oversight
Restrictions on judicial oversight of private prisons have limited the role of the courts in ensuring safe and adequate
conditions. Seemingly routine inability or unwillingness to identify and remedy deficient contract performance has
likewise resulted in private prisons potentially escaping liability for problematic conditions.
1. Litigation Reforms Restricting Judicial Oversight of Private Prisons
The viability of ß 1983 n37 claims, long a powerful weapon for individuals challenging government misconduct, is less
than clear in the private prison context. n38 Prisoners whose rights are violated in private facilities can try to hold a
number of parties liable: an individual guard, the private prison company, a specific government actor (such as a
monitor), or a government entity that contracts out a core function. Courts have largely refused to consider private
prison companies to be the functional equivalent of government entities for purposes of liability for harm stemming
from treatment or conditions in their facilities:
Federal prisoners may not sue private prison corporations for damages under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics ... [and t]he Eleventh Circuit has recently held that private prison operators are not "public
entities" under the Americans with Disabilities Act, and therefore, unlike publicly operated prisons, cannot be sued
under Title II of that statute.
Prisoners in privately run facilities are also prohibited from suing individual private prison employees for violations of
their rights under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics n40 when state tort remedies exist
to address their alleged injuries. Preclusion of such ß 1983 claims against both individual guards and the companies that
employ them prevents prisoners from utilizing what could be a very effective litigation tactic. As noted by Professor
Jack Beermann, "[A ß 1983 claim] is relatively cheap to add to a set of other claims. The payoff ... may be great,
including the availability of federal jurisdiction and the possibility of an award of attorneys' fees." Within the prison
context specifically, Beermann believes that two primary distinctions between the nature of government and private
operations make ß 1983 claims the best option to hold private parties liable for harm. First, it may be easier to impose
liability on a private prison company than the government, as plaintiffs would have to meet the "municipal liability"
standard for local government, which does not allow for vicarious liability. Second, the Supreme Court has refused to
extend qualified immunity to private defendants under ß 1983. Crucially, ß 1983 claims could provide a federal right of
action where state law does not reach and give plaintiffs an effective alternative to the forum of state courts, which are
"oriented to support the state, not to constrain state action."
Further, respondeat superior liability usually does not apply to private corporations n47 or to ß 1983 claims.
Prisoners suing in federal court under Bivens may be likewise precluded from applying principles of respondeat
superior to hold private prison companies liable for employee actions. The Supreme Court has held that guards at
private facilities where state oversight is weak cannot raise a qualified immunity defense to a ß 1983 personal injury
claim, but "it is unclear whether the same result would follow in a state with an aggressive monitoring program."
Prisoners seeking to hold state or local governments accountable for harms imposed by a private contractor would
therefore need to prove vicarious liability by demonstrating a nexus between some government actor's conduct and the
deprivation of a right. Most likely, a prisoner would have to show that a government monitor's actions caused a
violation of his or her rights, by failing to ensure compliance intentionally or willfully. n53 Extending liability to both
private prison companies and government actors could have important fiscal implications, for "if a contractor and
government supervisor can both be held liable, the government may have to pay the employee's judgment (through
indemnification) and the contractor's judgment (by means of passed-through costs in future rate adjustments)."
Therefore, under ß 1983, prisoners in private facilities cannot sue individuals or private prison companies when
state tort remedies suffice, and they cannot sue companies or governments for individual actions under a respondeat
superior theory. Essentially, these prisoners would either have to prove vicarious liability or that the company operated
as the functional equivalent of a government agency to sue the company or its employees under ß 1983. In any event,
litigation challenging individual harms would only have a limited impact on broader reform and may actually
undermine such efforts due to the paradoxical nature of ß 1983 applicability. As Stephen Raher explains,
If private operators are more susceptible to liability than their state counterparts (under continued adherence to
Richardson), then the increased costs will presumably be passed on to contracting agencies, thus raising the fiscal
burden of privatization. On the other hand, if the courts equalize treatment of public and private prisons, contractors will
have reduced incentive to improve conditions (and correspondingly reduce profit margins) in an effort to avoid section
1983 liability.
While litigation could help some individuals in private facilities (assuming they successfully navigate the complexities
described), as with litigation in other arenas, many meritorious cases result in settlement. However, settlements of
prison conditions cases are increasingly rare and unlikely to lead to larger systemic reform through deterrence. n58
Transparency enhances accountability by permitting interested parties to focus more attention on government
operations. In the prison context, information about things like staffing ratios, provision of medical and mental health
care, use of solitary confinement, rates of violence, and protection of prisoners' fundamental rights such as access to the
courts n59 and correspondence with the outside world can shed much-needed light on prison conditions and operations.
n61 When a government runs a prison, it must comply with public records requests regarding an array of operational
information. Access to such information helps advocates identify deficiencies and improve conditions without resorting
to costly and increasingly difficult litigation. Private prisons, in contrast, are not so obligated, which creates unique
obstacles to the effective oversight necessary to address systemic deficiencies and problems.
Prisoners Disadvantaged/Need Protected
Prisoners are the most disadvantaged minority
David Fathi, 2010, Director, National Prison Project of the American Civil Liberties Union Foundation, THE
CHALLENGE OF PRISON OVERSIGHT, American Criminal Law Review, Fall, 1453-4
Prisons are closed environments, largely hidden from public view. For obvious reasons, the public and press cannot be
allowed the same degree of access to prisons as they are allowed to other government facilities, and security concerns
require some monitoring and control of contacts between prisoners and the outside world.
Prisons also house a uniquely powerless population. Prisoners are overwhelmingly poor and lacking in formal
education; many are functionally illiterate. In all but two states, they are deprived of even that most basic instrument of
political self-defense--the vote. n1 Their unpopularity makes it unlikely that others will come to their aid. Prisoners are
the ultimate "discrete and insular minorit[y]" n2 ; no other group in American society is so completely disabled from
defending its rights and interests.
The combination of these factors--the closed nature of the prison environment and the fact that prisons house
politically powerless, unpopular people--creates a significant risk of mistreatment and abuse. This risk is, of course, not
unique to the United States, and other democratic states have devised various means of countering it. Many have an
independent national agency that monitors prison conditions and enforces minimal standards of health, safety, and
humane treatment. For example, in Great Britain, Her Majesty's Inspectorate of Prisons has the power to conduct
unannounced inspections of all prisons and jails. In the member states of the Council of Europe, the Committee for the
Prevention of Torture monitors conditions in prisons and other places of detention. In countries that have ratified the
Optional Protocol to the Convention Against Torture (OPCAT), monitoring by a national oversight body is
supplemented by periodic visits by the United Nations Subcommittee on Prevention of Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment.
Part I of this Article provides an overview of the significant decline in federal-court oversight of U.S. prisons and
jails in the last two decades. Part II examines the dearth of non judicial oversight mechanisms. Part III discusses the
unique oversight problems posed by private prisons. In each of these areas, the American Bar Association's Standards
on the Treatment of Prisoners provide guidelines on best practices, which are reviewed in turn.
Models of Legitimate Punishment
Private punishment undermines the institution of justice in a liberal state
Mary Sigler, Professor of Law, Arizona State University College of Law, 2010, Florida State University Law Review,
Private Prisons, Public Functions, and the Meaning of Punishment, p. 149
I. Introduction
While these important policy considerations may be reason enough to worry about the proliferation of private
prisons, I argue that an even more fundamental consideration concerns the nature and justification of punishment in a
liberal democratic polity. Punishment under law is a profound exercise of state power the meaning and justification of
which depend on the social and political institutions that authorize it. In a liberal state-as in the United Statespunishment is inflicted for public wrongs in the name of the people. Although it may be justified with reference to a
plurality of public values, it is a predominantly retributive practice that constitutes and expresses society's moral
condemnation of criminal conduct. Central to this conception of punishment is the relationship between punisher and
punished, for it transforms otherwise socially objectionable conduct, such as the deprivation of liberty, into a just social
practice. Punishment is thus meaningful not primarily as a means to an end; rather, punishment instantiates justice. The
delegation of punishment through prison privatization attenuates the meaning of punishment in a liberal state and
undermines the institution of criminal justice.
Models of legitimate liberal punishment
Sharon Dolovich, Professor of Law, UCLA School of Law, 2005, Duke Law Journal, December, State Punishment and
Private Prisons, p. 462-3
II. A Liberal Standard of Legitimate Punishment
Legitimate punishment in liberal democracy has several components. Of these, two in particular bear most centrally on
the legitimacy of penal policies and practices: the humanity principle, which obliges the state to avoid imposing
punishments that are gratuitously inhumane, and the parsimony principle, which obliges the state to avoid imposing
punishments of incarceration that are gratuitously long. In each case, gratuitous punishment is that which cannot be
justified to all members of society under fair deliberative conditions. These principles reflect familiar liberal ideals: that
society owes particular obligations of respect and consideration toward fellow human beings, especially those rendered
helpless, dependent, and vulnerable by actions society itself has undertaken, and that any violation of the liberty and
dignity of citizens by the state demands compelling justification.
In what follows, I provide a foundation for these ideals in the theory of legitimate punishment in liberal democracy
I have developed in greater detail elsewhere. Doing so grounds the intuitions informing the liberal principles of
humanity and parsimony, and thereby enriches our understanding of the obligations incurred when the state punishes
convicted offenders.
A. A Rawlsian Model of Legitimate Punishment
State punishment represents a dilemma for liberal democratic societies. For while punishment as a form of state power
protects citizens from crime, it also represents the exercise of extremely oppressive force - at times even deadly force by the state against its own citizens. A central challenge for any liberal theory is thus to establish the principles under
which, in the name of criminal punishment, the state may legitimately burden, perhaps severely, the liberty, dignity, and
bodily integrity of sovereign citizens.
How is the content of such principles to be determined? As I have elsewhere argued, n94 following Rawls, if the
exercise of the state's power to punish in a liberal democracy is to be legitimate, it must be justifiable on terms that all
those subject to this power would accept as just and fair under conditions of strict impartiality. Why conditions of strict
impartiality? In a liberal democracy, all citizens are entitled to equal consideration and respect. All citizens, moreover,
may be presumed to have an urgent interest in the greatest possible protection of what I have called their "security and
integrity," that is, security from assault on and interference with their physical and psychological integrity and wellbeing. These goods are fundamental to the exercise of individual freedom and self-development. They are also at great
risk of violation by both crime and punishment. All citizens thus have an important stake in the terms on which state
punishment is imposed on criminal offenders. But if these terms were established absent conditions of strict
impartiality, there would be a danger that those parties with the most power and influence would simply choose
principles of punishment that would most protect the security and integrity of people like themselves and do little to
protect the security and integrity of society's most vulnerable members. Indeed, the most powerful citizens might even
choose principles of punishment that put the urgent interests of the most vulnerable citizens at risk, if doing so would
benefit themselves in any way. Of particular relevance to the present project, for example, they might impose
punishment regimes that burden the security and integrity of the most vulnerable in order that they themselves could
benefit financially.
Applying Rawls's model of the "original position" with its "veil of ignorance" to the problem of punishment guards
against this possibility. Behind the veil of ignorance, the parties selecting the principles of punishment know nothing of
their own personal particulars or conception of the good. They can therefore only safeguard their own urgent interest in
the greatest possible protection of their security and integrity if they choose principles that would also safeguard the like
interest of all others. In this way, the strict impartiality of the modified Rawlsian model n98 ensures that parties
choosing principles of punishment will consider the various options from all possible social positions - including that of
society's least powerful and most vulnerable members. This standard of strict impartiality thus ensures equal
consideration and respect for the liberty, dignity, and bodily integrity of all sovereign citizens.
B. The Humanity and Parsimony Principles Derived
The question then becomes: what constraints on the state's criminal justice policies would emerge from the deliberative
model just described? Elsewhere, I identify several such constraining conditions. That analysis yields two principles,
those of humanity and parsimony, which bear directly on the legitimacy of penal policies and practices. Space does not
permit me here to provide full analytical support for this assertion, but brief consideration of the perspective of the
deliberating parties in the original position should be sufficient to motivate the claim.
Behind the veil, the parties know nothing of their own social position or personal particulars, but they do know that
they will have some conception of the good that they will want to realize. They also know that they are choosing
principles of punishment for a partially compliant society, that is, a society with some measure of crime, where innocent
people are sometimes wrongfully convicted and punished, and in which social goods are unjustly distributed. The
parties will thus anticipate a threat to their security and integrity from both crime and punishment, and they will seek
principles that best protect these goods. How are they to do so? Behind the veil, the parties would reason according to
the "leximin" variant of the "maximin" rule. Maximin holds that under conditions of uncertainty, those wishing to
maximize their prospects should assume that, once the veil is lifted, they will end up in the position of society's worst
off. Leximin then directs deliberators to select those principles that would guarantee the best possible result for the
worst-off citizen who stands to be affected, and not to be "much concerned for what might be gained" by those who
wind up in more fortunate positions.
The parties will thus select those principles of punishment that provide the greatest possible protection for the
security and integrity of the worst off. This means the parties would not agree to principles that could compromise the
security and integrity of the worst off in order that other better-off members of society might satisfy their less urgent
interest in accruing financial advantage - an interest that is less urgent because it is unconnected to the protection of
anyone's security and integrity. This stance can be understood as constituting a priority rule - call it "the priority of the
most urgent interests" - to govern the selection of the principles of punishment. Security and integrity are necessary
preconditions for the exercise of all other basic liberties, prior even to material goods. The parties, consistent with the
priority of the most urgent interests, would therefore reject any principles authorizing punishment that would only
enhance anyone's less urgent financial interests at the expense of the more urgent interest of the worst off in the
protection of their security and integrity.
Both the humanity principle and the parsimony principle flow from this priority rule. Behind the veil, the parties
cannot be confident that, once the veil is lifted and they enter society as citizens, they will not end up as either crime
victims or targets of punishment. They also know that incarceration represents a serious violation of the security and
integrity of the target. They will thus choose principles of punishment that impose incarceration only when - and only to
the extent that - doing so will maximize the security and integrity of the worst-off person who stands to be affected. To
the extent that a prison sentence would worsen the condition of the target vis-a-vis that person's security and integrity
without improving anyone else's condition vis-a-vis their security and integrity, it would be viewed as merely gratuitous
and thus beyond the scope of punishments the state may legitimately authorize. Hence the parsimony principle, which
prohibits gratuitously severe punishments.
To this point, humane punishment has been assumed. The parsimony principle is thus concerned exclusively with
length of sentence. But what of inhumane punishment? Under some extremely limited circumstances, imposing
inhumane punishment may be consistent with maximizing the security and integrity of the least-well-off person who
stands to be affected. In the vast majority of cases, however, the imposition of any inhumane punishment would not
satisfy these limited circumstances. And where it would not do so, it, too, would be merely gratuitous, and consequently
illegitimate. Hence the humanity principle, which prohibits gratuitous inhumane punishment.
To identify the principles of legitimate punishment is no guarantee that the punishments actually imposed will in
fact be legitimate. Many hurdles to effective implementation still exist. Perhaps chief among them is ensuring that the
political process that translates the principles into policies remains unaffected by illegitimate influences. Such
legislative-stage processes are as vulnerable as deliberation over the basic principles themselves to being skewed toward
serving the interests, urgent or otherwise, of the politically powerful at the expense of the urgent interests of more
vulnerable citizens. Ideally, to guard against any such abuses, parties deliberating at the legislative stage as to how to
implement the principles of legitimate punishment would do so as if behind a "modified veil." Such a veil would
continue to screen out individuals' knowledge of their personal particulars while allowing full access to the facts about
society that are necessary to crafting meaningful policy.
In the real world, the legislative process falls somewhat short of this ideal. State officials, however, are still obliged
to do what they can to secure the necessary conditions for legitimate punishment and to avoid taking steps likely to
corrupt these conditions. This imperative may be thought of as an "integrity condition," against which any criminal
justice policy must be measured. Where legislators fail to satisfy this condition, the criminal justice system may come to
lack integrity, a circumstance that could lead not only to illegitimate punishment but also to citizens' widespread
mistrust of the society's criminal justice institutions. This danger, although certainly present where the issue is the
humanity of conditions of confinement, is particularly salient in the parsimony context, where the issue is the severity of
the sentences imposed. It is thus in the discussion of the parsimony principle that consideration of the integrity
condition will most inform the analysis.
The humanity principle
Sharon Dolovich, Professor of Law, UCLA School of Law, 2005, Duke Law Journal, December, State Punishment and
Private Prisons, p. 469-70
A. Understanding the Humanity Principle
The humanity principle, concerned with the conditions of confinement under which a given sentence is served, forbids
gratuitous inhumane punishment. Inhumane punishments are those punishments imposed under conditions that degrade,
humiliate, or otherwise seriously compromise essential aspects of the moral personhood of the target. I take it as
uncontroversial that punishments of this sort would include those that subject targets to nontrivial deprivations of the
basic necessities of human life - adequate food, clothing, shelter, medical care, and so on - as well as those that pose an
ongoing threat of physical or sexual assault.
Inhumane punishment may not always be incompatible with the demands of liberal legitimacy in a partially
compliant society. However, the circumstances under which such punishment might be legitimate are highly
circumscribed, and at the very least would be subject to two main limiting conditions. First, where the state's legitimate
purposes can be achieved through either humane or inhumane forms of punishment, the state must impose only the
former. And second, any inhumane punishment imposed must not be, in either duration or form, more severe than
necessary to serve legitimate purposes. Each of these conditions is imposed for the same reason: any inhumane
punishment beyond these points would be merely gratuitous and, therefore, illegitimate.
The limiting conditions on inhumane punishment required by the liberal perspective understand "gratuitous"
punishment through the lens of the priority of the most urgent interests. Put more formally, no punishment that
compromises the essential aspects of the target's moral personhood may be imposed unless it can be reasonably certain
and necessary to appreciably deter violations of the equally urgent interests of others who are as badly off as the
incarcerated. It therefore follows that no inhumane punishment may be imposed in order to maximize the less urgent
interests of anyone in their own financial gain, for any such inhumane punishment would necessarily be merely
gratuitous.
How might this principle prohibiting gratuitous inhumane punishment be applied in the policy realm? For one
thing, it would be an insufficient justification for inhumane treatment that money would be thereby freed up that could
be put towards improving the prospects of free citizens. Instead, inhumane punishment that could otherwise have been
prevented through greater financial investment would be justified on this principle only if it can be shown both that the
money saved thereby is necessary to improve the condition of the worst-off person in society with respect to their most
urgent interests, and also that this expected improvement is not mere speculation or vaguely anticipated future benefit,
but is reasonably certain to result if the necessary resources are shifted away from the prisons. Where these twin
conditions cannot be satisfied, the humanity principle obliges the state to spend the money necessary to prevent
gratuitous inhumane punishment. The state is not required to spend more on inmates' upkeep than is necessary to satisfy
the minimum standard of the humanity principle, although in some cases prudence or other considerations may counsel
doing so. Luxury accommodations are not required. Where, however, the state is faced with a choice between protecting
prisoners from inhumane conditions of confinement or funding some other appealing project, it is obliged to spend the
money to protect its inmates unless the competing project equally implicates the most urgent interests of other citizens
who are as badly off as the incarcerated.
The value and normative foundation of punishment
Mary Sigler, Professor of Law, Arizona State University College of Law, 2010, Florida State University Law Review,
Private Prisons, Public Functions, and the Meaning of Punishment, p. 169-70
IV. The Meaning of Punishment
To flesh something out is to add detail to an existing structure-to put meat on the bones. Fleshing out the meaning
of punishment, as I undertake it here, involves identifying the basic framework of liberal-democratic punishment in the
Anglo-American tradition, then filling it out with some conceptual detail and defining its normative contours. The
resulting account of punishment will be recognizably our own, though it will not reflect the prevailing approach to
punishment in the United States, the United Kingdom, or anywhere else. My aim is thus to suggest "an ideal conception
of what punishment ought to be, in whose light we can evaluate (and no doubt find seriously wanting) our existing
practices."
I begin by outlining the familiar principles of the liberal-democratic tradition that structure the institutions of
criminal punishment, then draw on various retributive and communicative theories to sketch a conception of
punishment that reflects the most compelling features of that tradition. n109 Finally, I consider the implications of the
retributive-communicative account for prison privatization, concluding that private prisons are largely inconsistent with
the meaning of punishment in a liberal-democratic polity-that the proliferation of private prisons moves us further away
from the highest ideals of the Anglo-American tradition.
A. The Liberal-Democratic Political Tradition
The commitment to liberal-democracy sets the parameters for legitimate punishment in the Anglo-American
tradition. In its classic formulation, the liberal- democratic polity arises from a state of nature into which individuals are
born free and equal. Endowed with rationality and a bundle of natural rights, individuals come to recognize the
advantages of mutual cooperation and consent to form themselves into political communities that secure their rights and
coordinate their activities through the mechanisms of self-government and the rule of law.
One need not-should not-accept the state of nature as a historical phenomenon to appreciate the liberal-democratic
values it showcases. In particular, because individuals are free and equal rights-bearers, a status inherent in their
humanity, they can neither be legitimately deprived of their rights without their consent nor compelled to sacrifice their
own interests for the good of others. The commitment to self-government provides individuals a say in establishing and
enforcing the laws that bind them, while the rule of law constrains arbitrary and unreasonable manifestations of
collective power. Contemporary conceptions of liberalism introduce autonomy and pluralism that provide individuals
the authority and resources for determining the course of their lives according to their own conceptions of meaning and
value. Finally, part and parcel of Anglo-American liberalism is a set of commitments-citizenship, community, and civic
responsibility-traditionally denominated republican.
This distinctive blend of liberal and republican values yields a social and political environment that reflects neither
extreme individualism nor radical communitarianism, but a more or less stable balance between individual and
community interests that is constantly being negotiated and renewed. At our worst, the obsession with individual rights
vitiates any sense of common purpose; at our best, political participation is deliberative, reshaping individual
preferences in light of community norms and values. Indeed,[c]riminal law is . . . one area in which Americans have
conceded to the state an almost unqualified right to act in the name of the polity, and hence one of the few places in
which one can discern an American conception of political community that is not a mere collage of individual
preferences.
Nothing in this brief account of liberal-democratic values obviously disqualifies any of the traditional justifications
for punishment. Utilitarian purposes-incapacitation, deterrence, and rehabilitation-honor the basic liberal commitment to
public order by securing the rights of individuals against criminal transgression. Retributivism respects the human
capacity for choice that the commitment to individual rights presupposes. Yet the familiar weaknesses of these
approaches quickly surface. Because utilitarianism conceives of the public good in the aggregate, it fails to take
seriously the distinction between persons and is formally indifferent regarding the allocation of benefits and burdens.
Absent side constraints, it countenances the deliberate infliction of punishment on the innocent n114 and accommodates
modes and methods of treatment that fail to accord with our basic sense of justice and proportionality. Moreover,
because utilitarianism operates primarily through fear and manipulation rather than appeals to shared values, it fails to
address individuals as citizens or as members of a normative community.
For its part, retributivism, without more, seems less like a justification for punishment than an article of faith.
Despite the powerful intuitions that underwrite it, its historical and conceptual affinity with revenge should give us
pause. The concept of desert at the heart of retributivism is similarly intuitive but also deeply mysterious, while the
commitment to proportionality cannot provide or even suggest a scale of deserved punishment.
Although neither the utilitarian nor retributive justifications provide a complete, or completely satisfying, account
of criminal punishment, only the retributive approach is ultimately consistent with the liberal-democratic values of the
Anglo-American tradition. For retributive punishment is premised on the liberal individual with the distinctive set of
attributes and capacities that determine our moral status. As free and rational agents, we are held accountable for our
choices, including acts of criminal wrongdoing; to refrain from punishing for such acts would be to fail to treat
wrongdoers as responsible moral agents. Moreover, because our rights are inviolable and cannot be subordinated to the
interests of others, the deliberate punishment of the innocent is ruled out of bounds regardless of whatever social benefit
it might produce. Finally, the social condemnation that inheres in retributive punishment presupposes a community of
value as well as a responsible moral agent. In the absence of either, punishment lacks moral authority and retributive
meaning.
B. Retributive Communication
In the modern liberal-democracy, acts of criminal wrongdoing are not only offenses against particular victims, but
offenses against the community as well. While the most serious forms of law violation-assault, robbery, and murder, for
example-most dramatically affect direct and identifiable victims, law violation in all its forms constitutes a transgression
against the political community as a whole, a subversion of its norms and values. Because it is a liberal- democratic
polity, moreover, its laws will reflect the self-determination of its members. For "[t]he voice of the law is (or aspires to
be) the voice of the community addressing itself, the voice of all the citizens addressing one another and themselves."
Legal punishment represents the community's formal response to criminal attacks, a "special social convention that
signifies moral condemnation."
On the communicative conception, criminal justice represents a kind of "moral dialogue" between citizens and the
state as the legal embodiment of the political community. "The distinctive meaning of criminal wrongdoing is its denial
of some important value, such as the victim's moral worth." Against the backdrop of the community's norms and
conventions, the social meaning of criminal conduct is objective, conveying disrespect for victims and contempt for
community values regardless of the offender's subjective motive or intent. Likewise, criminal punishment draws its
meaning from the values of the community and its conventional forms of condemnatory expression. These reflect
"deeply rooted public understandings" of particular modes of punishment that signify the gravity of criminal
misconduct.
C. The Meaning of Prison
Punishment, then, is and effects a form of community censure that takes its meaning from the community's values
and conventions. The Anglo-American criminal law contemplates a wide array of punitive practices, ranging from fines
to capital punishment, each with a more or less distinctive social meaning. Because "certain forms of hard treatment
have become the conventional symbols of public reprobation," it is not enough to attend to the severity of punishment;
we must also consider the mode of punishment as well. This accounts for why punishing a brutal rapist with a monetary
fine would offend our sense of justice. The problem is not (only) that the punishment is too lenient, it is rather the
wrong kind of punishment; it is insufficiently expressive of public condemnation, "trivializ[ing] the seriousness of the
offense and denigrat[ing] the worth of the . . . victim."
In the Anglo-American tradition, "[i]t is . . . imprisonment in a penitentiary, which now renders a crime infamous."
n129 Because it entails the extreme curtailment of individual liberty and physical exclusion from the political
community, it expresses condemnation in the clearest possible terms. In the liberal- democratic context, the loss of
freedom and community "is our society's most potent symbol of moral condemnation." It signifies "that the offender
has, by his crime, made the maintenance of normal community with him impossible . . . ."
At its best, a term of imprisonment represents an extreme form of censure that "dramatically and unequivocally"
expresses social condemnation for acts and agents of serious wrongdoing. In the conventional parlance of the AngloAmerican criminal law, it addresses offenders as responsible moral agents whose wrongful choices provoke the
community's punitive response. However, what is heard "depends not just on the content of what is said, but on the
context in which it is said, and the accent in which it is spoken." Effective communication thus depends on the identity
of the speaker as well as the identity of the listener, lest "some offenders . . . hear its voice, not as the voice of a
community to which they belong and are treated as belonging, but as the voice of an alien and oppressive power . . . ." It
must be "us against us" rather than "us against them."
But perhaps, one might argue, the moral dialogue ends at the moment of conviction and sentencing. At that point,
the community has articulated its values through the legislative process, affirmed its commitments through the
mechanisms of enforcement and prosecution, and communicated censure to the offender directly through the trial
process by pronouncing guilt and imposing a fitting sentence. What, if anything, remains to be said? What possible
significance could attach to the identity of the jailer?
The first problem with this way of putting things is that it misplaces the burden of justification. The enterprise of
criminal justice, according to the retributive-communicative account, is not a series of discrete processes that can be
neatly distinguished and parceled out for delivery. Rather, criminal justice encompasses the full range of decisions and
actions that define, enforce, and affirm the community's standards of criminal behavior through a process of ongoing
dialogue. In light of this, we should expect the state, as the legal embodiment of the political community, to assume
responsibility for all aspects of criminal justice-to take our part in the dialogue. Carving out one or more of these
activities for private delivery thus requires justification in terms of the relevant legal, moral, and political values. So
instead of asking opponents of privatization why the enterprise of community censure extends beyond the moment of
conviction and sentencing, we should ask proponents of privatization why they believe that is the critical moment when
the dialogue ends. What is it about punishment, imprisonment in particular, that distinguishes it from the other aspects
of criminal justice? Why is the identity of the jailer insignificant?
One way to make the case that it does not matter who owns and operates a prison- so long as inmates are treated
fairly and humanely-would be to draw a sharp distinction between the responsibilities of prison personnel and those of
legislators, prosecutors, and judges. On this view, prison employees, whether public or private, are charged with
implementing the decisions of various public officials- housing inmates for more or less determinate periods of time
while maintaining a generally humane environment calculated to protect inmates and respect their rights. As such,
punishment is akin to a ministerial function, involving the execution of policies and decisions made elsewhere by
others. Although legislators, prosecutors, and judges (or juries) exercise considerable discretion in reaching their
judgments, prison personnel, on this conception, do not. Thus, a prison employee acts "in a prescribed manner, in
obedience to the mandate of legal authority, without regard to his or her own judgment or opinion concerning the
propriety of the act to be performed."
This argument is unavailing because it is based on a misconception of prison operations. Prison personnel, ranging
from top administrators to line officers, in fact exercise considerable discretion in virtually every aspect of their work.
Although legislative and judicial mandates set the parameters of fair and humane treatment, it is not possible to
anticipate every situation that is likely to arise or to specify appropriate responses in advance. n138 As a result, prison
personnel are necessarily afforded substantial discretion to establish and implement prison policy and to address the
day-to-day contingencies that they encounter in the prison environment. For their part, administrators must develop
policies regarding the provision of medical care, standards for administrative classification, and the procedures for
inmate discipline. Corrections officers who interact directly with inmates must not only implement these policies in a
variety of settings, they must also make on-the-spot judgments about inmates and their behavior- determining whether
they require medical attention, represent a danger to themselves or others, or merit disciplinary action, administrative
segregation, or even the use of force. Moreover, these decisions are not confined to the margins of the prison
experience; they arise on a daily basis and will dramatically affect the length and character of a criminal sentence.
Since prison personnel exercise considerable discretion, their role is not relevantly distinguishable from other actors
in the criminal justice process whose decisions we recognize as our own. By privatizing punishment, however, we
terminate the dialogue between offenders and their community in just the same way as if we privatized prosecutors and
criminal courts. "Although some historical traditions permitted prosecutions initiated by private parties, contemporary
U.S. practice consolidates prosecutorial power in the government, with the symbolic message that the government
stands in for the community and private victims." Indeed, even proponents of prison privatization balk at the idea of
privatizing criminal courts. Our reasons for rejecting privatization of these aspects of criminal justice should lead us to
resist prison privatization as well.
Moreover, despite the conventional meaning of prison in the Anglo-American tradition, the message of punishment
it constitutes can easily be scrambled. Prison privatization interposes a filter between the community and the offenders
whom it calls to account. In particular, by transforming the institutions of punishment into commodities-fungible
objects of economic exchange-privatization alters the character of punishment, reducing the punitive enterprise to a
question of price point and logistics. It becomes a puzzle to be solved rather than a dialogue to be opened or renewed.
For in the same way that "[t]he law and the courts speak and act in the name of the political community," our
conventions establish that our prisons do so as well. "That message ought to be conveyed by the offended community of
law-abiding citizens, through its public agents, to the incarcerated individual." As we distance ourselves from the
condemnatory practice, however, we attenuate its message of censure, alienating offenders and ourselves from the
meaning and value that constitute the liberal- democratic community.
Skeptics of the "social meaning" argument against prison privatization observe that the cultural context that confers
meaning is by no means fixed. Indeed, perhaps "there are already some legislators, judges, administrators, and
entrepreneurs"-we might add citizens and criminal offenders-"who actually and honestly do not believe that 'private'
imprisonment is significantly different from 'public' imprisonment in cultural terms." To the extent that this is the case,
it suggests how far we have strayed from the normative path of liberal-democratic meaning. In fact, we can recall or
envision changes in meaning regarding a number of culturally significant phenomena, such as marriage, parenthood,
and rape. But presumably it is not a matter of indifference to us what course these changes take-whether rape is or is not
regarded as a serious violation of the self, whether marriage and family are limited to heterosexual couples or extended
to homosexuals, polygamists, or other nontraditional arrangements. In each instance, the challenge is to make a case for
meaning in terms of our liberal-democratic values and to promote or resist cultural change on that basis.
In the case of criminal punishment, the contemporary focus on incapacitation, combined with an "us versus them"
mentality toward criminal offenders, represents an impoverished conception of the liberal-democratic community and
charts a course in the wrong direction. It fails to take seriously both the capacity of persons to make and remake
themselves and the number and variety of obstacles, affecting some more than others, in the way of making socially
responsible choices. By contrast, the communicative conception of punishment is predicated on precisely those features
of the human condition-on our potential and our limitations-that ground our liberal- democratic commitments. There is
thus nothing "mysterious" about the idea that it matters who inflicts punishment. For punishment engages fellow
citizens in one of the most serious and definitive enterprises of a liberal- democratic community-holding ourselves and
one another responsible for our actions- and the voice of the community is clearest when it speaks for itself.
Private prisons threaten the parsimony principle
Sharon Dolovich, Professor of Law, UCLA School of Law, 2005, Duke Law Journal, December, State Punishment and
Private Prisons, p. 542-3
Considering the state's use of private prisons through the lens of the parsimony principle reveals a possible threat to the
legitimacy of punishment whenever parties with a financial interest in increased incarceration are in a position to exert
influence over the nature and extent of criminal sentencing. If this concern is real, it suggests an independent reason for
the state not to privatize its prisons: even granting that similar concerns exist elsewhere in the criminal justice system,
the state ought not to foster yet another potentially influential industry that could seek to compromise further the
possibility of legitimate punishment to promote that industry's own financial interests. This is especially so given the
likely limitations of available mechanisms for constraining any undue influence by private parties on criminal justice
policies.
But exploring this concern in the context of private prisons has revealed a problem that extends well beyond this
context, arguably reaching the core of our majoritarian system. That this is so vindicates the assertion, made above, that
considering private prisons from the perspective of liberal legitimacy provides a lens through which to see in a new light
practices in the criminal justice system that may have been too readily taken for granted. At the same time, however, the
apparent extent of the problem may seem to undercut the value of the exercise; having revealed so deep a problem, I can
offer no easy remedy.
The difficulty is that, absent widespread commitment to ensuring that criminal punishment satisfies the demands of
the parsimony principle, there will be no broad sympathy for the view that society needs to exclude illegitimate
considerations like the financial advantage of voters from the process of establishing sentencing policies. This means
that to address the problem properly, there can be no half measures. So long as one continues to assume that criminal
justice policy is appropriately shaped through an interest group model of politics, where all parties with a stake in the
outcome vie for policies friendly to their own interests, looking to prisons for economic prosperity will seem entirely
unobjectionable. Indeed, on the interest-group model of politics, it seems exactly right. The only adequate remedy is
broad acceptance of the idea that the parties charged with determining the nature and extent of criminal punishment
have an obligation to make such determinations in isolation from any possible knowledge of their own personal interests
- or those of their constituents.
Broad acceptance of this approach, however, is a tall order; it would, as Simone Chambers recently noted, require
that legitimate punishment come "to be understood democratically, not just philosophically." Certainly, any such
process of "public opinion formation" will not happen overnight. But the first step is to make explicit the potential
conflict between legitimate punishment and conceiving of incarceration as a source of financial gain. Having done so, it
will then be possible to challenge state officials to act in ways that minimize this conflict as much as possible, and to do
all they can to rise above this impulse themselves.
In the private prisons literature, it has largely been assumed that prisons are no different from any other government
function to be privatized. Private prisons have thus been treated as an issue of privatization and not one of criminal
justice policy. The foregoing analysis, however, makes plain what is lost with this move: it makes it impossible to see
that the state's use of private prisons reflects a larger trend toward viewing incarceration in economic terms and
regarding prison inmates as the economic units of a financial plan. If anything, private prisons appear to be the logical
extension of this vision, which already informs myriad aspects of this country's criminal justice system, including the
practice of prison administrators contracting out the provision of basic services to cut the cost of corrections;
underinvestment in mechanisms for accountability and oversight; and the tendency of private prison providers,
correctional officers, and the voters themselves to look to increased incarceration as the means to their financial wellbeing.
From the perspective of liberal legitimacy, there is a serious cost to the widespread adoption of this economistic
view: n407 society becomes less likely to see those it punishes as human beings and more likely to lose a sense of the
severity of the burdens punishment imposes. Indeed, from the perspective of liberal legitimacy, the most troubling thing
about private prisons may be what they reveal of this country's collective failure of respect and responsibility toward
those it incarcerates.
Punishment in private prisons doesn’t fulfill the liberal obligations of society
Sharon Dolovich, Professor of Law, UCLA School of Law, 2005, Duke Law Journal, December, State Punishment and
Private Prisons, p. 444-7
In this Article, I approach the private prisons issue from a third perspective, that of liberal legitimacy. Liberal
legitimacy offers what the private prisons debate has thus far lacked: an independent normative standard for assessing
the legitimacy of penal policies and practices in a liberal democracy. On this standard, if our penal policies and practices
are to be legitimate, they must be consistent with two basic principles: the humanity principle, which obliges the state to
avoid imposing punishments that are gratuitously inhumane; and the parsimony principle, which obliges the state to
avoid imposing punishments of incarceration that are gratuitously long. In each case, gratuitous punishment is that
which cannot be justified to all members of society under fair deliberative conditions. In this Article, I sketch the
foundation for this legitimacy standard. I then apply its conditions to the case of private prisons. Doing so reveals the
extent to which punishments served in private prisons fall short of society's obligations to those it incarcerates - and
why they do so.
Liberal legitimacy thus rejects the comparativist's impulse that has thus far defined the private prisons debate. The
question here is not: how do private prisons compare with public prisons? It is instead: to what extent is the use of forprofit private prisons consistent with society's obligations to those it incarcerates?
Asking this latter question helps to reframe the debate in two ways, both long overdue. First, it allows for a direct
focus on the structure and functioning of private prisons, and thus for the development of a rich understanding of how
the private prison system actually works and precisely where it fails, without being derailed by premature demands for
comparison with public-sector prisons. Most notably, it allows for direct assessment of the claim that the profit
incentive motivating prison contractors will distort the decisions made by private prison administrators and lead to
abuses. This claim is often raised by opponents of private prisons. Yet it is rarely pursued in any sustained way, for
whenever it is voiced, it is either dismissed outright as unsupported or quickly deflected by reference to the admittedly
incontrovertible fact that public prisons, too, are rife with abuse. By contrast, assessing private prisons against the
standard of liberal legitimacy not only allows but demands a thorough analysis of the concern that prison contractors'
profit motive will lead to cutting corners in ways likely to harm inmates. It thus enables an understanding of the dangers
posed by private prisons that is at once more comprehensive and more nuanced than is possible from within the
comparativist frame.
Second, confronting the ways in which private prisons are at odds with society's obligations to those it incarcerates
provides the basis for a far-reaching critique of several practices that currently inform prison administration more
broadly. The possibility that studying private prisons might afford a fresh perspective on society's penal practices in
general has not been seriously considered by those engaged in the private prisons debate. In fact, a guiding premise of
this debate has been that for-profit private prisons represent a radical departure from the way the public prison system
otherwise operates. But this premise is false. Although private prisons do have some distinctive features, the differences
between public and private prisons are mostly differences of degree. The use of private prisons is thus neither an
isolated nor an aberrant approach to punishment, but is rather the logical extension of policies and practices that are
already standard features of our prison system. Examining private prisons from the perspective of liberal legitimacy
exposes this overlap, thereby throwing into sharper relief several problematic aspects of the penal system as a whole
that are currently taken for granted. In this sense, the study of private prisons operates as a "miner's canary," n22
warning that not just the structure of private prisons, but also that of American punishment practices more broadly, may
need reconsideration.
Criticisms of the Private Prison Industry
Three types of critiques of the private prison system
Ahmed White, 2001, Associate Professor of Law, University of Colorado School of Law; J.D., Yale University School
of Law, 1994, American Criminal Law Review, 38 Am. Crim. L. Rev. 111, Rule of Law and the Limits of Sovereignty:
The Private Prison in Jurisprudential Perspective, p. 134
At least one recent poll of national scope (albeit commissioned by a union representing public prison employees) claims
to demonstrate significant public skepticism about private prisons. General popular sentiment as well as a plethora of
editorial pieces seems to confirm this attitude. In fact, from its resurgence in the 1980s, the private prison has been
subjected to a number of more or less scholarly critiques. These critiques, which of course transcend the critique of
criminal punishment as such, can be grouped in three overlapping categories: (1) those that focus on the private prison's
practical or "performance" shortcoming; (2) those that point to the private prison's legally problematic characteristics;
and (3) those that deem private prisons inherently problematic on a normative, usually moral or ethical, plane.
Sentencing Reform
Sentencing reform a superior solution and privatization undermines it
American Civil Liberties Union, 2011, Prisons for Profit: A look at prison
privatization,
http://www.acluohio.org/assets/issues/CriminalJustice/PrisonsForProfit2011_04.pd
f
Sentencing Reform: The Real Solution to Ohio’s Ballooning Corrections Budget Prison
overcrowding is the underlying cause of Ohio’s bloated corrections budget. The state’s prison
population has quintupled since 1975.107 But while prison overcrowding is obviously bad news for
the Ohio taxpayer, it is good news for MTC, CCA, and other private prison companies operating in
the state. The idea that privatizing any more of Ohio’s already overcrowded prisons will help
reverse this overwhelming burden on the state treasury is contrary to the nature of prisons for profit.
The prospect of simply releasing massive numbers of prisoners back into society or changing
sentencing laws so that fewer convicts are imprisoned raises legitimate public safety concerns.
However, the current policy of harsh sentencing and prison overcrowding results in 60 percent of
Ohio prisoners being incarcerated for low-level, nonviolent offenses. Sentencing reforms that are
carefully designed and correctly implemented will save taxpayer dollars and improve public safety
whereas increased privatization will do the opposite on both fronts.
Legislation introduced during the 129th Ohio General Assembly presents a clear first step toward
criminal justice reform in Ohio. One of the central innovations of this proposed legislation is to
increase earned credit programs.
Unlike traditional “time off for good behavior,” where inmates’ sentences are reduced simply
because they did not misbehave while serving their time, earned credit allows the inmate to shave
time off of his or her sentence by “successful[ly] participat[ing] in education, vocational training,
penal industries employment, or substance abuse treatment.”108 The maximum time off the inmate
can earn under the legislation would be 8 percent of the sentence.109 Inmates would therefore have
the incentive to participate in rehabilitative programming that will help them reintegrate into society
while holding them accountable. Ohio’s Buckeye Institute estimates that the earned credit
provision, would “eliminate the need for 1,270 beds, resulting in annual savings of $5.48 million.”
Thirty-three states have earned credit laws on the books. An increase in the use of community-based
corrections is another feature of the bill that would save Ohio taxpayers money. In 1979, Ohio
passed the Community Corrections Act, which established a system of prisoner diversion programs.
In 2008, “more than 5,500 offenders were diverted into community-based corrections facilities
(CBCF),” which are dormitory-style residential facilities “that receive capital and operations
funding from the state.”111
CBCFs offer such rehabilitative programming as drug treatment, education, and job training. The
typical length of stay at these facilities is six months. The Ohio Criminal Sentencing Commission
“has determined that CBCFs save taxpayers money because of shorter periods of confinement and
reduced recidivism rates when compared with prison.”112 Other notable features of the bill include a
provision that revises marijuana penalties and eliminates the sentencing disparity between crack and
powder cocaine and a provision that narrows the definition of “escape” as it applies to prisoners on
supervised release.113
Both of these reforms correct the excesses of failed “tough-on-crime” policies that have fueled the
costly explosion in prison population in Ohio and nationwide over the past generation. The majority
of Ohio prisoners are incarcerated for low-level, nonviolent offenses,114 and if only a fraction of
those prisoners were diverted into treatment programs, Ohio taxpayers would already be saving
millions. But mandatory drug sentencing laws prevent this from happening.
Likewise, many probationers and parolees are reincarcerated for the crime of “escape” simply
because of honest mistakes or misunderstandings that they have “absconded” supervision. The new
escape provision “would allow the Adult Parole Authority to utilize various sanctions at their
disposal, thus avoiding new felony charges” and would “eliminate the need for more beds, thus
creating dditional incarceration cost savings.”115
Finally, the bill would expand eligibility for medical parole among geriatric inmates. Elderly
prisoners with serious medical conditions rarely if ever pose a serious threat to public safety. The
provision would give parole boards the option of committing these inmates to nursing homes in lieu
of releasing them.
Geriatric inmates “consume a disproportionate share of Ohio’s growing correctional medical
costs.”116 An April 2010 study by the Vera Institute of Justice found that “between 1999 and 2007
the number of people 55 or older in state and federal prisons grew 76.9 percent” and that “prisons
spend about two to three times more to incarcerate geriatric individuals than younger inmates.”117
Removing these inmates from the prison system “could significantly reduce inmate health care
costs”118 without posing any substantial risk to public safety. Studies on parolee recidivism find the
probability of parole violations also decreases with age, with older parolees the least likely group to
be reincarcerated.”
119
In fiscal year 2010, ODRC spent $225,829,929 in medical costs. Thirty-nine states have laws
providing for medical parole. Reforms like these will only work if they are implemented correctly.
Ohio will have to put forth clear criteria to guide the selection of inmates who will participate,
provide adequate post-release supervision of those inmates who do participate, and establish a
coordinated statewide system of administering these alternative sentencing programs.121 By doing
so, Ohio will be able to “focus supervision resources on those people who pose the greatest danger
to the community” and “systematize”how people are assigned to services in the community, which
maximizes the value of these scarce program slots.”122 All of these sentencing reforms save the
taxpayer money by reducing the number of inmates occupying prison beds in Ohio at any given
time. Prisons for profit undermine these reforms, because the reforms directly cut into their profit
margins and threaten to put them out of business. The more a state privatizes its prison system, the
less control and authority it will have to implement these reforms. True sentencing reform requires
statewide coordination and a common set of central guidelines about inmate classification that
private prison operators would have a natural economic incentive to resist. It is troubling enough
that the profit motive compels private prison companies to cut their costs by eliminating the very
programs that would allow inmates to participate, for example, in earned credit activities. But the
fact that such cost-cutting provides a further economic windfall for these companies by ensuring
that inmates stay incarcerated (and generating revenue) as long as possible is obscene.
Privatization, therefore, is not a sensible component of a “package” of cost-saving reforms to
address a budget crisis; it will likely offset any savings derived from sentencing reforms and other
budget balancing measures.
A2: We Can Reform the Private Prison, We Don’t Have to Abolish It
Private prison reforms expand the coercive power of the state
Ahmed White, 2001, Associate Professor of Law, University of Colorado School of Law; J.D., Yale University School
of Law, 1994, American Criminal Law Review, 38 Am. Crim. L. Rev. 111, Rule of Law and the Limits of Sovereignty:
The Private Prison in Jurisprudential Perspective, p. 137-8
Commenting broadly on criminal justice issues, Stanley Cohen argues forcefully that the coerciveness of the state
consistently is expanded by apparently progressive reforms that blur spatial boundaries between state and society,
obscure channels of ownership and control, and conceal the identity of state actors. For Cohen, even reforms that seem
to mark the retreat of the state and its appetite for control (for example, the development of "community controls" and
halfway houses, and the extension of parole) almost invariably augment (as opposed to displace) existing mechanisms
of punishment and ultimately expand state prerogatives. A similar logic inheres in the relationship of the contemporary
private prison to sovereignty.
The sovereignty-extending character of the private prison is obvious. The prison, any prison, is an extreme
representation of the sovereign prerogative of the state. The private prison is not only a prison, it is (or at least it claims
to be) a kind of perfect prison: a more efficient and more effective version of the institution and thus a more efficient
and effective articulation of state control. Consistent with this aspect, the rise of the private prison has in no way slowed
the rate of incarceration or reduced the scope of the criminal justice system--quite the contrary. When seen in this light,
the private prison immediately appears as a development that contradicts the most fundamental ideal behind the rule of
law: that of absolutely minimizing the coercive prerogative of the state.
Though troubling, by no means does this straightforward conflict with the rule of law mark the extent of the private
prison's problematic character. Perhaps more insidiously, the private prison's characteristic interpenetration of public
and private translates into a persistent confusion regarding the legal rules that apply to private prisons. As with convict
leasing, clear examples of this kind arise around the question of liability. Section 1983 actions are the primary vehicle
for the vindication of prisoners' rights, in particular those concerning conditions of confinement. McKnight resolved
negatively the then-unanswered question of whether private prison guards could avail themselves of the "qualified
immunity" privilege generally available to state actors who reasonably believe their conduct to be lawful. To some
extent, McKnight has clarified the issues and generally increased the likelihood that private prison operators and their
agents will be subject to viable inmate lawsuits. But key questions remain unclear, for example, whether such causes of
action are equally viable in the federal context (i.e., as Bivens actions). Also unclear is the extent to which the so-called
"good faith" defense is available to private prisons in ß 1983 cases. Although it is rather well-settled that private prisons
constitute state action sufficient to form a basis for such causes of action, 7 it is not at all clear whether any specific
deed committed by a private prison or its agents constitutes state action. Although this problem of defining the limits of
state action is endemic to civil rights jurisprudence, it seems aggravated in this case by the proliferation of non-state
functions and actors in the private prison.
Just as problematic and unclear in the wake of McKnight is the scope of government liability. There is good reason
to anticipate that under present law the private prison has the effect of insulating the state from liability and thus legal
accountability. This follows not least from the fact that ß 1983 generally does not trigger the application of the principle
of respondeat superior. In the normal public prison context this situation is problematic enough for its diffusion of
liability. In the private prison context, this difficulty is magnified, as the state is one step further removed from exposure
to liability (at least to the extent that agents of the state are not "deliberately indifferent" within the meaning of these
claims). Notwithstanding McKnight's clarifying functions, then, the state still seems able to reduce its level of legal
responsibility to inmates when it incarcerates them in private prisons. Similarly, it seems probable that the use of private
prisons generally limits the litigation expenses of states as well.
It also is likely that the juridical structure of the private prison attenuates and ultimately insulates the state from
accountability of a more symbolic, political kind. Private prisons tend to distance public officials from responsibility for
the way private prisons are run. The most obvious evidence of this is that, when private prisons are the subjects of
scandal, corruption, and the like, journalists and regulators focus first and most forcefully on the private character of the
institution, and only later, if at all, on more general public policy dimensions of criminal incarceration. In similar
fashion, the private prison converts the problems of prisons--which are endemic and substantial in every case--into
management questions and questions of relative performance, efficiency, contract interpretation, and so forth. Several
critics of the private prison have articulated this issue in terms of problems of misaligned "symbolism" and of
"intervening" implications of the private prison for the way the public understands the origins and functions of criminal
justice policy.
As if this situation did not sufficiently insulate the sovereign from its deeds, there also are complex jurisdictional
problems with contemporary private prisons. In particular, private prisons frequently are established within jurisdictions
different from the contracting state (i.e., they house out-of-state inmates) or established under contracting regimes that
involve intervening governmental entities between the contractor itself and the incarcerating government. Apparently, in
Tennessee alone, CCA houses inmates from Washington, D.C., Hawaii, Montana, and Wisconsin. At present,
Wisconsin holds the lead with more than 4,000 of its inmates incarcerated in other states.In Louisiana, a chronically
abusive juvenile detention center, housing state offenders, operated under a contracting scheme that, by inserting a
municipality, left no direct contractual privity between the state and the facility.
In such situations, there remains a great deal of legal uncertainty, which seems to have benefited the contractors
more than the states or the wayward inmates. In one notable case, two violent sex offenders from Oregon, housed at a
CCA "immigrant detention center" outside of Houston, escaped from the facility. This caused the firm, which initially
had declared that it had no obligation to notify the local authorities of the institution's presence, to proclaim that it was
not their function to capture them. When the local authorities captured the inmates, at their own expense, it turned out
that because they escaped from a private facility, the escapees could not be prosecuted under Texas law. In a manner
slightly reminiscent of state attempts to recover stipulated fines for escapes under convict leasing, Texas since has
embarked on a campaign to recover costs of recapture from private prison operators.
The merger of the public and private in the private prison inevitably confuses, as well, the issue of access to private
prisons--to prison grounds, records, and so forth. The courts and legislatures have long struggled with access issues in
the prison context and have long had to balance the advantages of and legal claims to open access against penological
(usually security related) concerns. Foucault describes how all prisons refine the punitive authority of the state by
cloaking the mechanisms of punishment in a veil of secrecy. By its very nature, the private prison renders the prison all
the more insular and the legal questions surrounding access vastly more complicated, for it adds to the mix the
proprietary rights of prison contractors. The issue has not lent, and perhaps cannot lend, itself to any consistent
resolution and should be understood as one of several ways the private prison exacerbates the irrationalities of the
modern prison.
Yet another area of legal complication centers on the due process rights of inmates incarcerated in private prisons.
The law in this area clearly favors the promulgation of consistent, predictable rules and procedures--of the kind, as
mentioned earlier, that comport with one of the main normative aspirations of the rule of law and that, as a more
substantive matter, ensure that states retain ultimate control over decisions affecting basic terms and conditions of
incarceration. The existence of even seemingly mundane rules and procedures are particularly important to the extent
that they govern internal affairs of prisons--for example, disciplinary proceedings--that can have substantial
implications for length and conditions of incarceration. With private prisons, it seems inevitable to some commentators
(not to mention being consistent with the reality of the situation) that the private institutions themselves will,
notwithstanding the law, be able to retain substantial authority over these matters, particularly the administration (as
opposed to the making) of rules and procedures. To the extent as well that states are unlikely to enact effective
safeguards, the possibility remains that the private prisons may be able cynically to sustain their occupancy rates, and
therefore their revenues (as most contracts are per inmate/per diem), by manipulating inmates' terms of incarceration.
Like convict leasing, too, the confused juridical structure of the contemporary private prison is intrinsically
connected to endemic corruption. With the private prison, the relevant public and private parties frequently seem to
wear the same hat, or live under the same roof, as it were. When, in 1985, CCA attempted to contract with Tennessee
for a ninety-nine year management contract covering all the state's facilities, it turned out that the governor's wife and
the Speaker of the State House owned stock in the firm. n144 Indeed, CCA was founded by politically connected
figures: its principle founder was a former chairman of Tennessee's Republican Party. Similarly, Louisiana's chronically
troubled Tallulah Correctional Center for Youth originally was owned by a group of partners intimately connected to
former Governor Edwin Edwards, himself a perennial subject of corruption investigations. Somewhat more direct
influence over the political process on the part of private prison operatives also is evident. In Arkansas, the founder of a
private prison company recently was sentenced to prison for attempting to bribe a correctional official. In Georgia, CCA
invested over $ 130 million in building 4,500 beds before it had any contracts with the state to house any inmates.
Instead, the company had "an understanding" with Georgia's correctional officials and with local politicians--
notwithstanding the state's competitive bid laws. In that case, Georgia's Commissioner of Corrections illegally
communicated with CCA's lobbyist on the project throughout the bidding process. In Ohio, CCA recently managed,
through a "lobbying blitz," to defeat legislative attempts to regulate the state's private prisons. CCA's lobbyists include,
on a national level, J. Michael Quinlan, former Bureau of Prisons Chief under President George Bush Sr., and in
Tennessee (again) the wife of the Speaker of the State House. In California, CCA, Wackenhut, and Cornell Corrections
recently were reported to have retained some of the state's "most powerful lobbyists" to expand their market.
While there is not yet any credible evidence of contractors' attempts, as was the case with convict leasing, to
manipulate the criminal law to bolster their business prospects, a finance officer at CCA apparently described the 1994
Federal Crime Bill, with its tougher penalties and grants for prison construction, as something "very favorable to us."
Similarly, a recent conference of private prison contractors featured a keynote address (by Charles Thomas, whose
scholarly contributions are cited in this Article) entitled, "The market remains quite positive." Suffice to say, there is
certainly structural potential for this type of conduct--but given current rates of growth in incarceration, such lobbying
is for the moment quite unnecessary anyway.
As was also the case with convict leasing, many private prisons appear unable to insulate decisions about the
quality of penological functions from financial considerations. Critics of private prisons continually identify horrendous
examples of avaricious, sometimes downright mercenary conduct by prison operators--including underpayment and
under-training of guards and other employees, overcrowding, improper classification of inmates, and patently
inadequate security structures. When, in 1994, Human Rights Watch investigated the Tallulah juvenile facility described
above, it found not only questionable physical structures and inadequate services, but also that offenders were short of
food and provided with grossly inadequate clothing. Company officials there successfully resisted for several years
attempts to amend these and other abominable conditions, prompting four temporary takeovers by the state (the last one
permanent) as well as extensive litigation. When recently denied a unilateral demand for increased per diem
compensation, the facility's owners (who had just obtained a lucrative and discretionary buy out in the face of a final
take-over) simply cut back again on the provision of basic necessities. A newer private juvenile facility in Louisiana,
operated by Wackenhut, was also recently made the object of a Justice Department lawsuit alleging, among other
outrages, inadequate health care and education, shortages of food, shoes, and bedding.
Indeed, the intrusion of profit motives into management decisions is a pervasive problem with private prisons. The
most salient expression of this is that private prison officials inevitably find themselves having to balance separate,
often competing interests and sort out competing loyalties. Much of the supposed competitive advantage of private
prisons derives from their ability to sidestep the civil service wages required with public prison guards. This dynamic
encourages not only the employment of under-trained and disinterested employees but aggregate reductions in staffing-practices which in turn account in part for elevated levels of abuse, inmate-on-inmate violence, and so forth. At each of
the private juveniles facilities just mentioned, the Justice Department cited inadequate training, retention, and
compensation as contributing causes of abuse.
In a manner also reminiscent of convict leasing, other methods sometimes are employed to make money in private
prisons besides simply economizing on services. CCA was recently sued by an advocacy group claiming that the
corporation and its telephone carriers are earning super-profits by charging exorbitant rates for inmate phone calls.
Though apparently not yet pervasive, some private prisons replicate the convict lease system's signature practice of
setting their inmates to work at for-profit tasks. This practice is accompanied by a more common variant, which entails
the leasing-out of inmate labor, but not actual custody of the inmates, to private contractors--a system that replicates the
exploitation of early penitentiary inmates and is being sold to the public with the same logic of fiscal efficiency.
My point in recounting these dysfunctions is not to rehash the claims of more empirically and practically minded
critics of private prisons. Instead, I wish to emphasize that such dysfunctions are neither accidental nor episodic, but
instead are intimately related to the absence of rule of law norms. Put another way, these dysfunctions are the
predictable companions of a system premised on legal confusion, on divided obligation and interests, on the stealthy
extension of the state--premised in short on the thoroughgoing abrogation of rule of law norms and their sovereigntyrestraining functions.
The private prison must be abolished. Reforms fail
Ahmed White, 2001, Associate Professor of Law, University of Colorado School of Law; J.D., Yale University School
of Law, 1994, American Criminal Law Review, 38 Am. Crim. L. Rev. 111, Rule of Law and the Limits of Sovereignty:
The Private Prison in Jurisprudential Perspective, p. 145
Finally, I do not deny that aggressive courts, competent legislatures, and zealous reformers theoretically could resolve
all the diverse problems that plague private prisons: the uncertainty about liability and the line between the state and the
contractor, the problems of accountability and public perception, the jurisdictional problems, and so forth. But if convict
leasing suggests anything about private prisons it is first that juridical structure is relevant to the prospects of reform,
and second that the possibility of reform must not be confused with its probability. Of course, for those who approach
this issue in a more principled, or at least more skeptical way, this is all beside the point anyway, since it is clear that
reforming and clarifying the legal and political character of an institution premised on the merger of the public and
private only can be accomplished by legalizing the interpenetration of public and private and by affirming the normative
dysfunctions that come with the private prison. For, while the institutions' various dysfunctions--corruption, abuse,
confusion about liability--seem quite logically related to a lack of state regulation and control, increasing the
involvement of the state in the operation of private prisons, short of abolishing private prisons as such, can only have
the effect of more deeply entrenching the juridical dynamics--the interpenetration of public and private and the diffusion
and extension of sovereignty--that underlay the private prison's problematic character in the first place. From a rule of
law standpoint, the private prison seems a hopelessly problematic institution.
Reforms fail
Clifford Rosky, 2004, Law Clerk to the Honorable Robert D. Sack, United States Court of Appeals for the Second
Circuit. Irving S. Ribicoff Postgraduate Research Fellow, Yale Law School, 2002. J.D., Yale Law School, 2001,
Connecticut Law Review, Spring, Force, Inc.: The Privatization of Punishment, Policing, and Military Force in Liberal
States, p. 947
This leads to the third obstacle, which merits more attention here: If today's privatization effort is motivated by the
wrong objectives, why must we prohibit privatization instead of reforming it? Let us assume that in empirical terms, the
anti-majoritarian critique is correct: When today's governments privatize force, they sacrifice human rights to
democracy and downsizing. Now we come to a fork in the road to human rights. On the left, we could assume that this
majoritarian dynamic is a natural, necessary fact about governments and therefore prohibits governments from hiring
private prisons, police, and armies at all. On the right, we could try to protect victims from voters. We could reform the
privatization of force by reforming the demand-supply relationship between governments and corporations. We could
look for concrete ways to motivate public officials and private employees to respect and protect the rights of inmates,
suspects, and combatants.
This road has not been traveled by human rights critics, but it has been positively trammeled by legal scholars. In
law reviews, scholars have often observed that our most significant human rights safeguards have been designed to
protect against abuses committed by governments rather than corporations. As a result, they have argued, the activities
of private punishment, policing, and military corporations often fall through legislative, judicial, and administrative
cracks.
Let us call these "loophole" arguments. In such arguments, legal scholars rarely suggest that loopholes are reasons
to ban the privatization of punishment, policing, and military force. Far more often, they argue that we should regulate
private prisons, police, and armies by closing the gaps. They propose reforms designed to constrain the behavior of
private punishment, policing, and military corporations and employees. They argue, for example, that (1) private prisons
should not enjoy immunity from federal lawsuits, (2) private police searches should be governed by the Fourth
Amendment and thus justified by probable cause, and (3) mobilized defense contractors and PMC soldiers should be
classified as lawful "combatants" under the Geneva Convention and bound by international laws of war.
Many of these proposals reflect an old assumption in legal thought--that judges, lawyers, and litigators must carry
the mantle of human rights and shoulder the anti-majoritarian burden alone. But it is easy to imagine less conventional,
more modern solutions that draw upon the powers of legislators and administrators as well. Contracts could be drafted
to include more rights-conscious performance incentives, reporting and monitoring requirements, and insurance,
damages, and termination options. Statutes and regulations could be drafted to require public agencies to monitor our
private prisons, police, and armies more closely. Or they could empower human rights groups--such as Amnesty
International and Human Rights Watch--to do so instead.
Would any of these reforms work? In the long run, which road would be better? Would regulated corporations
exercise punishment, policing, and military force more or less callously than governments? These choices between
public and private supply present hackneyed dilemmas in public policy circles. In the end, this is the greatest weakness
of anti-majoritarian arguments: Although these questions are familiar and inevitable, anti-majoritarian arguments
provide no useful tools to resolve them. When it comes to private supply, these arguments make a strong case for
reform, but a weak case for prohibition. They offer no proof that the model of private supply and public demand is
broken beyond repair.
Yet they do suggest that reforms would be hard won, if not unwinnable. As one critic warns, "I do not deny that
aggressive courts, competent legislatures, and zealous reformers theoretically could resolve all the diverse problems that
plague private prisons . . . . But the possibility of reform must not be confused with its probability." Anti-majoritarian
critics remind us that in the real world, the privatization of punishment, policing, and military force is not likely to be
accompanied by human rights reforms. In political terms, the privatization of force is about democracy and downsizing,
not human rights. We should not expect governments to reform private punishment, policing, and military markets by
themselves. On the contrary, we should expect them to resist such reforms. This is the greatest strength of antimajoritarian arguments: They offer the historical, practical reminder that voters rarely protect victims, so that
democratic governments are inconstant guardians of human rights.
This is a useful admonition. But it criticizes the privatization of force qua popular politics rather than privatization
qua privatization. It fails to articulate any structural, systematic link between the privatization of force and the
regulatory failures of governments.
A2: Contracts Solve
States don’t prevent private prison companies from violating contracts
Mike Tartaglia, 2014, October, Student of law at Boston University School of Law, PRIVATE
PRISONS, PRIVATE RECORDS, Boston University Law Review, p. 1700
2. States' Failures to Hold Private Prison Companies Accountable for Contract Violations
Absent public oversight through enforcement of public records laws, regulation of the private prison industry becomes
more difficult. Transparency for the sake of general public information is an important dynamic of oversight in its own
right, but the lack of transparency makes legal reform and contract monitoring more difficult as well. Aside from
litigation, the impact of which is limited for prison oversight purposes, private prison oversight could come primarily
from governments who contract with these companies. Insofar as such contracts contain oversight provisions and
enforcement mechanisms, governments can theoretically employ them to improve private prison operations. However,
both the history of contract enforcement and the current state of affairs seem to indicate that contractual obligations are
an insufficient oversight mechanism to ensure accountability in the private prison industry.
Private prison contracts often require compliance with standards promulgated by independent professional
organizations such as the American Correctional Association ("ACA") or National Commission on Correctional
Healthcare ("NCCHC"). These bodies conduct inspections of government and private prisons to see how they comply
with each organization's respective standards regarding conditions, treatment, and facilities. Despite this ostensible
source of external oversight and simple metric for determining contract violations, these bodies have not ensured that
prisoners in private facilities receive constitutionally adequate treatment. The objectivity of these organizations has also
been questioned, as the private prison industry has spent thousands of dollars sponsoring conferences held by each. n70
A recent report by the National Council on Crime and Delinquency ("NCCD") found significant problems in
contract enforcement pervasive throughout the industry. The NCCD identified three major concerns regarding contractbased oversight: transparency, guaranteed payments, and monitoring. The lack of transparency results from the
industry's exemption from reporting requirements, its obstruction of monitors, and the fact that the companies "are [not]
even aware of the documentation and reporting requirements intrinsic to the operation of public agencies." The NCCD
also identified bed quotas, or "minimum-occupancy guarantees," as a common component of contracts favorable to the
private prison industry. Finally, it discussed how privatization incentives discourage transparency and accountability,
creating obstacles to effective monitoring beyond that seen in the realm of public prisons. The NCCD concluded, 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.
Oversight and monitoring has also proven to be difficult and tends to be lax and ineffective.
Numerous states have recently found deficient contract performance upon reviewing private prisons, often identifying
transparency concerns as obstacles to effective enforcement of such contracts. Even when state governments utilize
specific oversight mechanisms for the private prisons with which they contract, many have found internal oversight
inadequate to address systemic problems and deficiencies.
Idaho. Idaho's experience with private prison oversight is demonstrative of government inability to effectively
monitor private prisons. The State had been made aware of contract violations years before those problems resulted in
litigation from prisoners whose constitutional rights were violated by extreme violence. A supervising officer at the
Idaho Correctional Center ("ICC") informed superiors of staffing irregularities months before the litigation was filed,
detailing staffing positions for which the State paid but no officers were actually on duty. Further, the officer claimed
that superiors at the facility intentionally misrepresented staffing reports to the State, deceiving officials as to the
existence and extent of CCA's contract noncompliance.
Following the problems at ICC and the subsequent protracted litigation, Idaho sought bids to take over operations at
the facility following the automatic termination of CCA's contract. Interestingly, CCA declined to even bid on the new
contract, apparently no longer interested in operating the facility. Eighty percent of Democratic state legislators opined
that private operation of the facility no longer seemed a viable option and recommended the state take control of ICC. In
January 2014, the state began its official takeover of ICC when the legislature voted to remove the facility from private
hands after failing to find an adequate partner. A subsequent investigation by a private firm found extensive
misreporting of staff hours, and CCA reached an agreement to pay the state $ 1 million to remedy the deficiencies. The
State, however, failed to launch a criminal investigation as the Department of Corrections had claimed it had.
New Mexico. Most contracts with private prison companies contain enforcement mechanisms, such as financial
penalties for noncompliance. n86 But some states have failed to utilize these provisions, missing out on opportunities to
both encourage important reforms and collect potential sources of additional revenue. New Mexico's former Secretary
of Corrections declined to collect nearly $ 20 million dollars in fines from GEO and CCA for repeated contract
violations. His actions were particularly questionable because GEO had previously employed him as a warden at one of
its prisons. The State had known for years it was paying more for private prisons than government facilities and that it
had paid for vacant staff positions at private facilities. Of all the states, New Mexico also houses one of the largest
percentages of its prison population in private prisons - more than 40% - therefore, a significant portion of New
Mexico's prisoners rely almost exclusively on their government to ensure fair treatment through enforcing contracts
with private prisons. When the former Secretary went back to work for GEO, his successor began to use the penalty
provisions more aggressively, levying millions of dollars in penalties against the industry for staffing and other
violations.
Vermont. Vermont contracts with a private company to provide medical care to its prisoners. A recent report by the
state auditor found that the State was not saving any money by contracting out medical care to a private company and
that the State paid more than $ 4.2 million beyond its prison healthcare budget between 2010 and 2012. Performance
guarantees were built into the contract, allowing the State to penalize the company for failures to meet certain
benchmarks or provide certain services, with a provision that such penalties be applied in the first payment period after
a violation is discovered. However, the State took years to assess penalties against the company for known violations,
and failed to collect more than $ 11,000 worth of penalties. In so doing, "[the Vermont] DOC lost the opportunity to
offer a monetary incentive for [Correct Care Solutions] to correct its deficiencies in a timely manner." In fact, the
Vermont auditor identified failures in oversight as among the most significant factors in the company's failure to save
money: "Monitoring was lacking because [the company] did not provide complete and accurate reports in a timely
manner and [the Vermont Department of Corrections] did not assess penalties until many months after the performance
period in which the deficiency occurred."
Ohio. Ohio recently found that private prisons struggle to offer the same quality of services and care as the
government while saving money. Ohio became the first state to sell a state-owned facility to a private corporation for
ownership and management when it sold the Lake Erie Correctional Institution to CCA in 2010. The State, which
employs one of the most vigorous prison oversight programs in the nation, conducted inspections of the facility in 2011
and 2012; the 2011 inspection was not disclosed prior to its execution. Two years after the transition, the State's audit
revealed lingering deficiencies in many areas of institutional operations. CCA struggled to prevent inmate drug use and
to protect inmates from assault. The rate of prisoners logging grievances against staff actions increased dramatically
after CCA assumed operations. The audit curiously omitted a review of medical care and recreation, two issues that tend
to be among the most prone to grievances, making Lake Erie's grievance rate even more troubling.
Arizona. Following the escape of three men from a private prison in Arizona, the State conducted a comparison of
costs and conditions at state and private prisons for the first time, though it had ostensibly been required to do so for
over twenty years. The state auditor found that private prisons may actually cost the State more than it would spend by
operating prisons itself. Rather than reconsidering the State's experiment with prison privatization, Arizona legislators
passed a law eliminating the requirement to conduct the comparisons, and the State continues to rely on private prisons
to house thousands of its prisoners.
While the Bureau of Justice Statistics and the Arizona State Auditor have both found that private prison savings
may be illusory, a recent study from Temple University, funded in part by the private prison industry, found prison
privatization to offer substantial savings for governments. CCA and GEO have cited the Temple study extensively on
their websites and in publications, and the report authors wrote multiple op-eds supporting the study in mainstream
newspapers. Many of these references omitted discussion of the industry funding, and the companies and authors only
acknowledged it after an advocate filed an ethics complaint with Temple. Other research finding that private prisons
save money compared to government operation has also been questioned due to industry funding and connections. Cost
comparisons between public and private prisons are far from straightforward, but greater public access to information
could help illuminate both sides of the debate.
Prisoners, a uniquely disempowered political population, are ill-equipped to convince their representatives to
increase scrutiny of private prison companies. Prisoners' inability to advocate for legislative reform or increase
government oversight stands in stark contrast to the industry's substantial political influence, generated by a complex
approach involving lobbying, campaign contributions, and fostering close relationships between the industry and
government. A significant aspect of the general failure of governments to strictly enforce contracts against private
prison operators is the practical difficulty of housing so many prisoners. As Professor Mary Sigler notes, "public
officials dissatisfied with a contractor's performance - or rate increases - cannot realistically cancel the contract before
finding alternative placements for hundreds of inmates." Additionally, legislatures would not necessarily have the same
authority to demand change from private corporations as they would over a department of corrections.
Regardless of where prisoners are housed - in public or private facilities - states are ultimately responsible for
providing for their fair treatment and preventing them from suffering cruel and unusual punishments. Some states,
including Tennessee, either have provisions in their constitutions or have enacted statutes that require the state to
provide certain levels of care for their prisoners. While the evidence on private prison performance is not conclusive,
recent criticism of contract compliance and concerns about human rights seem justified. State governments have largely
failed to hold private prison companies accountable for contract violations, including staffing deficiencies and inability
to reduce prison spending.
A2: Saves Money
Private prisons don’t take expensive, high risk prisoners
Cody Mason, 2012, The Sentencing Project, Too Good to Be True: Private Prisons
in America,
http://sentencingproject.org/doc/publications/inc_Too_Good_to_be_True.pdf
Additional complications were raised in a 2004 study that found that state-run prisons are generally
left to take on a disproportionate number of expensive and high-risk inmates. For example, inmates
with minimum or medium levels of security classification made up 90 percent of the private sector’s
population, compared with only 69 percent in the public sector.
Any cost savings insignificant and comes with worsening conditions that increase prison
violence
American Civil Liberties Union, 2011, Prisons for Profit: A look at prison
privatization,
http://www.acluohio.org/assets/issues/CriminalJustice/PrisonsForProfit2011_04.pd
f
The Arizona audit only confirms decades of studies inquiring into wisdom and cost effectiveness of
prison privatization. Back in 1988, John Donahue of Harvard’s Kennedy School of Government
conducted a study of the benefits and drawbacks of prison privatization for the Economic Policy
Institute. He concluded that “the evidence on potential cost savings is too weak and too
questionable to warrant so radical and risky an experiment.”24 Since then, the evidence has not
gotten any stronger or more certain. A 1996 review by the U.S. General Accounting Office
surveyed studies conducted between 1991 and 1995 in five states — Texas, California, Tennessee,
New Mexico, and Washington — comparing operational costs at public and private facilities.25 It
found that each study “reported little difference” and “could not conclude whether privatization
saved money.”26 In 2001, the U.S. Department of Justice’s Bureau of Justice Statistics published an
even more comprehensive survey of cost-comparison studies and concluded that private prisons
offered only modest cost savings. “[R]ather than the projected 20 percent savings,” the survey
concluded, the average savings from privatization was only about one percent, and most of that was
achieved through lower labor costs.”27 The minimal cost savings that were achieved through lower
staffing levels did not come without a price — they were accompanied by “a significantly higher
rate of assaults” on inmates and staff.28
Private prisons underestminate costs
American Civil Liberties Union, 2011, Prisons for Profit: A look at prison
privatization,
http://www.acluohio.org/assets/issues/CriminalJustice/PrisonsForProfit2011_04.pd
f
In 2008, the National Institute of Justice found that private prisons tend to
underestimate the cost of oversight, health care, and background checks in their proposals and that
states end up paying more than they were told they would be paying. One
of the key reasons for such errors, the study found, was the inherent differences in the way
prison performance in the public and private sectors is measured. Private prisons’ performance is
measured by their compliance with the terms of their particular contracts (which, of
course, may vary). Publicly-run prisons, by contrast, measure performance through auditing
procedures.3 A 2009 “meta-analysis” of cost-comparative studies by five University of Utah
researchers consciously took into account these methodological issues and surveyed only “highquality” cost-comparison studies— studies that “directly compared . . . specific, identifiable, private
prison[s] with . . . closely matched, identifiable public prison[s].”32 ‘Cost savings from privatizing
prisons,” the study concluded, “are not guaranteed and appear minimal.”33
Private prisons don’t’ save tax payers money
American Civil Liberties Union, 2011, Prisons for Profit: A look at prison
privatization,
http://www.acluohio.org/assets/issues/CriminalJustice/PrisonsForProfit2011_04.pd
f
All of the abstract, quantitative talk about cost savings obscures the basic fact that the taxpayer does
not stop paying for a prison’s operation after it becomes rivatized. When the state government
enters into a contract with a private prison company, it legally binds the taxpayer to pay that
company a certain dollar amount perinmate per-day. There is therefore a direct correlation between
the company’s revenues and the taxpayer’s expenses. Privatized prisons are not intended to make a
profit for taxpayers — they generate revenue for shareholders.
Private prisons have not reduced costs
American Civil Liberties Union, 2011, Prisons for Profit: A look at prison
privatization,
http://www.acluohio.org/assets/issues/CriminalJustice/PrisonsForProfit2011_04.pd
f
The idea that outsourcing traditional public-sector functions will lead to those functions being
carried out more efficiently and less expensively is rooted in the philosophy that “the government
which governs best is that which governs least.” Those who support prison privatization believe that
opening up the operation of prisons to the competitive free market will result not only in those
prisons being run at a lower cost than public prisons but also in those prisons showing improved
“quality, flexibility, and innovation.”16 This is the position of the conservative Reason Institute, one
of the country’s leading voices for privatization. Even if one were to assume this argument to be
true, the sheer number of inmates who are currently locked up in Ohio calls into question the
wisdom of incarcerating many of them in the first place. 73.5 percent of males and 85 percent of
females in the Ohio prison system were classified as lowto- medium-security in 2009, and the
majority of Ohio prisoners were incarcerated for low-level, nonviolent offenses.17 Taxpayer money
could be better spent providing addiction treatment, job training, and job development programs
outside of prison for many of these inmates than keeping them locked up. Paying a private
contractor to house them in a more “flexible” or “innovative” way than the state is capable of doing
is hardly the best deal for the taxpayer. Countless studies by independent agencies, state
governments, and the federal government have compared the cost-effectiveness of public and
private prisons since the modern era of prison privatization began in the 1980s.18 Each of them
seriously calls into question the argument that privatizing a correctional facility makes it
significantly cheaper or more efficient to run. One recent study of note was a performance audit of
the Arizona Department of Corrections conducted by the state’s Office of the Auditor General in
2010.19 The audit noted that “Arizona’s prison population has grown faster than most states’ prison
populations” and that the state “has expanded [its] prison system to accommodate growth,” relying
heavily on privatization in order to contain costs.
Cost cutting undermines prisoner care
Lucas Anderson, 2009, is a J.D. candidate at The George Washington University
Law School and a member of the Public Contract Law Journal, Public Contract Law
Journal, https://www.prisonlegalnews.org/news/2009/dec/15/kicking-the-nationalhabit-the-legal-and-policy-arguments-for-abolishing-private-prison-contracts/
A. Cost-Cutting Measures Lead to Decreased Quality of Care
To increase profit margins, many private prison companies implement cost-cutting measures that
detract from essential inmate services. These service impairments frequently lead to foreseeable
yet tragic situations.72 “[T]he private sector is a more dangerous place to be incarcerated”73
partially because private prison companies often accede to their profit-maximizing incentive at the
expense of safety interests and prisoners’ basic human rights.
In comparison to their public counterparts, private prison guards receive lower pay and fewer
benefits.74 This leads to high turnover among private correctional officers, meaning that at any
given time there are more guards in private prisons who are new to their facility or to the field of
corrections in general than in public prisons.75 Private prison guards receive thirty-five percent
fewer service training hours than public prison employees.76
The implications for safety under these policies are obvious. For example, it was found that guards
in a private facility in Ohio had not received weapons training although they were instructed to
carry firearms while on patrol.77 In a private Texas facility, “guard training” seminars consisted of
watching videos in which prisoners were beaten, stun-gunned, stripped naked, and subjected to
unleashed dogs.78
The most effective means of lowering prison operating costs is to ensure that the ratio of prisoners
per guard is as high as possible.79 On average, private prisons employ fifteen percent fewer guards
per prisoner than public prisons,80 a policy that places both guards and inmates at an increased
risk of danger. In 2005, after an inmate riot in a private Colorado facility where thirteen correctional
officers were injured, a state investigation found that there were only thirty-three officers
overseeing 1,100 inmates when the riot began.81
The gravity of the profit incentive is manifest in many other dangerous and inhumane cost-saving
practices adopted by private prison operators. For example, in Youngstown, Ohio, a mediumsecurity prison operated by CCA was found to have reclassified maximum-security, high-risk
prisoners arriving from Washington, D.C., as medium-security inmates to avoid incurring costs
associated with raising the security level of the prison.82 Within the next eighteen months, two
Youngstown inmates were stabbed to death and forty-four other assaults were recorded.83 In a
private facility in Elizabeth, New Jersey, it was found that cost-cutting measures led to serious
shortages of food and sanitary supplies and the prisoners were routinely abused by the staff.84 In
2001, a Department of Justice study found sixty-five percent more inmate-on-inmate assaults and
forty-nine percent more inmate-on-staff assaults in private facilities than in government-operated
prisons.85 This trend is especially significant considering that private prisons are generally used to
house inmates from lower security classifications.86 As an inevitable product of private prison
companies’ cost-cutting incentives, these findings further demonstrate that the for-profit private
business model is incompatible with safe and effective prison administration.
Studies prove little to no cost savings
American Civil Liberties Union, 2011, Prisons for Profit: A look at prison
privatization,
http://www.acluohio.org/assets/issues/CriminalJustice/PrisonsForProfit2011_04.pd
f
Studies conducted by the U.S. Department of Justice and the U.S. General Accounting Office have
shown that private prisons yield little or no long-term savings
Studies do not support the claim that private prisons save money
Cody Mason, 2012, The Sentencing Project, Too Good to Be True: Private Prisons
in America,
http://sentencingproject.org/doc/publications/inc_Too_Good_to_be_True.pdf
A 1996 report by the U.S. General Accounting Office (GAO) looked at four state funded studies
and one commissioned by the federal government. The methodologies and results varied across the
studies, with two showing no major difference in efficiency between private and public prisons, a
third showing that private facilities resulted in savings to the state of seven percent, and the fourth
finding the cost of a private facility falling somewhere between that of two similar public prisons.
Another study also found significant cost savings associated with private prisons, but the GAO
criticized the report for using hypothetical facilities in its comparisons. The authors noted that they
could not definitively conclude that privatization would not save money, but also established that,
“…these studies do not offer substantial evidence that savings have occurred.”2
Similar conclusions were reached in a 2009 meta-analysis by researchers at the University of Utah
that looked at eight cost comparison studies resulting in vastly different conclusions. Of the eight
studies, half of them found private prisons to be more cost-efficient. The other four were evenly
split between public facilities being more cost-efficient and finding both types of prisons
statistically even. This information led the researchers to conclude that, “…prison privatization
provides neither a clear advantage nor disadvantage compared to publicly managed prisons” and
that “…cost savings from privatization are not guaranteed.” While not directly resolving the
question of whether private or public facilities are economically superior, the report did find the
value of moving toward prison privatization to be “questionable.”
Pro savings studies ignore significant overhead
Cody Mason, 2012, The Sentencing Project, Too Good to Be True: Private Prisons
in America,
http://sentencingproject.org/doc/publications/inc_Too_Good_to_be_True.pdf
The GAO’s critique of the methodologies used in comparisons is not unique. Former Bureau of
Prisons Director of Research Gerry Gaes made similar observations when reviewing two reports
that found different levels of savings when comparing the same three public prisons with a private
facility. In his 2008 report for the National Institute of Justice he observed that the more favorable
study for privatization did not adjust the data on the prisons to scale and failed to take into account
the proper amount of overhead costs for the private prison. Gaes noted that these types of cost
comparisons are deceivingly complicated and that current research is highly limited.31
Study shows only a 1% cost savings
US Department of Justice, 2001, Emerging Issues on Privatized Prisons,
https://www.ncjrs.gov/pdffiles1/bja/181249.pdf
The study resulted in some interesting conclusions. For example, it was discovered that, rather than the
projected 20-percent savings, the average saving from privatization was only about 1 percent, and most of
that was achieved through lower labor costs.
A2: Privatization Reduces Overcrowding
Overcrowding does not decrease, more prisoners fill the empty state beds
Lucas Anderson, 2009, is a J.D. candidate at The George Washington University
Law School and a member of the Public Contract Law Journal, Public Contract Law
Journal, https://www.prisonlegalnews.org/news/2009/dec/15/kicking-the-nationalhabit-the-legal-and-policy-arguments-for-abolishing-private-prison-contracts/
Currently, the Federal Government and most states authorize corrections
privatization in some form.5 Private prison contracts are intended to alleviate
prison overcrowding and reduce corrections expenditures while bypassing the need
for bonds, increased taxes, or funding referenda.6 However, experience has shown
that “the number of jailed criminals typically rises to fill whatever space is
available,”7 and privatization has so far failed to temper prison crowding.
Instead, the consistent demand for new prisons and jails has facilitated an
increase in governmental spending, and corrections budgets continue to swell
along with the prison population.
A2: Private Prisons Safe
Private prisons are not safe
American Civil Liberties Union, 2011, Prisons for Profit: A look at prison
privatization,
http://www.acluohio.org/assets/issues/CriminalJustice/PrisonsForProfit2011_04.pd
f
The fundamental economic tension between the private prison company shareholder and the state
taxpayer is further eflected in various social consequences of prison privatization that reverse the
very public benefits that prisons are supposed to provide to the community. Chief among these
benefits is public safety. A study by a professor at George Washington University found that private
prisons had a 50 percent higher incidence of inmate on staff assaults and two-thirds higher
incidence of inmate on inmate assaults than state-run prisons.63 A 2004 report by the Federal
Probation Journal that specifically controlled for prison security level found that private prisons had
50 percent more inmate on inmate assaults and almost 50 percent more inmate on staff assaults.64
These dangerous conditions create a difficult working environment for prison staff, resulting in a far
higher staff turnover rate at private prisons compared to public prisons. The private prison
industry’s own statistics show that at private prisons the turn-over rate was 53 percent, while at
public prisons it was a mere 16 percent. Prison safety depends on a stable workforce. The more
frequently a larger number of employees quit, the more dangerous prisons become. High turnover
rates mean existing staff are fewer in number and less experienced. Workforce instability at private
prisons has resulted in riots, rapes, assaults and escapes.65 The instability of private prison staffs is a
direct consequence of the fierce cuts in labor costs that private prisons resort to in order to maintain
short-term profitability. Containing labor costs “is the crux of the privatization movement.”71
Running a prison is an incredibly labor-intensive endeavor. Not only do you need enough
adequately trained guards to keep order and prevent escapes, you also need a staff to provide a wide
variety of inmate services, including meals, health care, counseling and vocational assistance, and
law library services.72 Private prison operators control their labor costs by reducing the number of
staff, hiring low-wage, non-union labor, and eliminating fringe benefits.73 Prison guards hired by
private facilities often have little to no training or experience, and in some instances are barely out
of high school.74 The result is a labor force that is ill-prepared for the violent crises that may erupt at
any moment. Cost-cutting on labor at private prisons perpetuates a vicious cycle: poorly trained and
poorly disciplined staff are incapable of adequately responding to prison emergencies, which creates
extremely dangerous conditions at the facility, which then forces a good many employees to quit,
and raises the turnover rate.
A2: Oversight Solves
Private prisons not held to contracts
Mary Sigler, Professor of Law, Arizona State University College of Law, 2010, Florida State University Law Review,
Private Prisons, Public Functions, and the Meaning of Punishment, p. 161
The challenges of contract drafting also create special problems in the private prison context. As many
commentators have noted, the "incarceration function . . . proves difficult to specify." n64 As a result, contract terms are
likely to be imprecise, providing an insufficient basis for gauging contractor performance. This problem is exacerbated
in the prison setting, where the quality of performance- from the provision of medical care to the use of force-can mean
the difference between life and death for inmates. Moreover, these activities take place behind closed doors in service of
beneficiaries who lack meaningful recourse in cases of poor performance. In these circumstances, officials can be
confident about neither the value of the contract nor the well-being of inmates. These obstacles to public accountability
suggest the challenges to effective oversight in precisely those circumstances that call for special vigilance.
Checks don’t solve the problems of private prisons
Sharon Dolovich, Professor of Law, UCLA School of Law, 2005, Duke Law Journal, December, State Punishment and
Private Prisons, p. 480-1
D. Available Accountability Mechanisms and Their Limits
The claim so far is this: absent effective checks, the desire for profit will lead private prison contractors to cut costs in
ways that will create or exacerbate gratuitously inhumane conditions of confinement. This claim is not a radical one. To
the contrary, it reflects a basic assumption at the heart of the private prisons literature, one made by advocates and
opponents alike, that without effective accountability mechanisms, privatization will lead to considerable reductions in
the quality of prison conditions. The only difference here is that I have explicitly emphasized the costs of inadequate
regulation in terms of the potentially inhumane treatment of inmates.
Properly channeled, the profit-seeking motive of private contractors may well allow states to achieve desired goals
in terms of prison conditions without also creating the danger of contractor abuses. But to achieve such desirable results,
effective regulation is indispensable. In what follows, I consider the four regulatory mechanisms most commonly
introduced as evidence that effective checks on private prisons exist - the courts, accreditation, monitoring, and
competition - and in each case explain why, under current and foreseeable circumstances, they are inadequate to the
task.
1. The Courts.
Arguably, any dangers private prison inmates face could be neutralized through lawsuits brought by them or on their
behalf. Not only might abused inmates thereby get a remedy, but the threat of lawsuits and the accompanying possibility
of major financial liability could provide incentives for private prison providers not to cut corners in ways likely to harm
inmates. However, given the current state of the relevant law, the courts are not likely to provide a meaningful check on
abuses in private prisons, notwithstanding the Supreme Court's ruling denying private prison guards qualified immunity
from Section 1983 actions.
Apart from a brief period in the late 1960s and early 1970s, judicial attitudes toward challenges to prison conditions
have been marked by considerable deference to the judgment of prison officials. As a consequence, the constitutional
rights of inmates have been interpreted extremely narrowly. For this reason, even instances of serious physical harm to
inmates may not qualify for legal relief. Moreover, the mechanisms through which private prison providers might seek
to save money could combine with the deferential standard of review under the Eighth Amendment to make it even less
likely that private prison inmates could make out a successful constitutional claim.
Consider, for example, the use of force by prison officials against prisoners. For an inmate to have a viable Eighth
Amendment claim against a prison official for use of excessive force, the inmate must show that the prison official
acted "maliciously and sadistically," with the intention to cause harm. So long as the prison official can make a showing
that "the use of force could plausibly have been thought necessary," the prisoner's claim will fail. n166 For example,
even assuming that the corrections officers at a privately run jail in Brazoria, Texas, who "forced prisoners to crawl,
kicking them and encouraging dogs to bite them," engaged in this abusive treatment because they were insufficiently
trained in less-abusive inmate control techniques, the prisoners themselves could have no constitutional recourse so long
as the guards could plausibly claim to have thought their actions necessary to "preserve internal order and discipline."
Under these standards, private prison inmates suffering harm traceable to contractors' inadequate investment in labor are
even less likely to recover than public prison inmates: guards who are insufficiently trained may well resort to force
more readily than guards with adequate training and experience, motivated in doing so not by a "malicious and sadistic"
desire to cause harm, but by their own ignorance and fear.
Or consider the Eighth Amendment standard for prisoners alleging inadequate medical care. In Estelle v. Gamble,
the Supreme Court held that for medical neglect of prisoners to rise to the level of an Eighth Amendment violation,
prison officials must be shown to have acted with "deliberate indifference to serious medical needs." To satisfy this
standard, prisoners must show that prison officials actually knew of the health risk and failed to take reasonable steps to
address the problem. It is not enough for the inmate to have told an official of pain or other physical distress; he or she
must also show that the official actually "drew the inference" from these facts of "an excessive risk to inmate health or
safety." Even under ordinary circumstances, it can be difficult for prisoners to make this showing. Add the profit motive
to the picture, and the possibility of making out a claim of Eighth Amendment medical neglect becomes even more
difficult. Prison operators wishing to save money on medical care might, for example, create a deliberately unwieldy
process for prisoners wishing medical attention, as has apparently been the strategy of Correctional Medical Services
(CMS), a for-profit prison medical services company operating in prisons and jails in twenty-seven states. They might
also hire medical staff of questionable competence, increasing the likelihood that conditions will go undiagnosed. n175
Or they might institute treatment protocols of questionable efficacy that cost less than medically indicated methods.
This last approach in particular might allow a defense that "reasonable" steps were taken even if they were ultimately
ineffective.
Even assuming prisoners could demonstrate an Eighth Amendment violation, they must first get a hearing.
Although no jurisdiction has ever warmly welcomed prisoner suits, the federal courts have traditionally been somewhat
more receptive to prisoner claims than have state courts. However, the passage of the Prison Litigation Reform Act of
1995 (PLRA), intended by Congress "primarily to curtail claims brought by prisoners" under Section 1983, n178 places
severe limits on inmates' access to the federal courts. In many cases, these burdens effectively prevent inmates'
constitutional claims from being heard in this forum at all. Not only does the PLRA explicitly limit the possible role
federal courts might play in enforcing acceptable standards in penal facilities, but it also sends a strong message from
Congress to the courts that they are to continue to give strong deference to prison administrators. These procedural
hurdles, of course, also restrict court access for prisoners in publicly run facilities. But if the profit motive is a source of
further potential abuse of prisoners in private facilities, these hurdles are that much more troubling when they prevent
private prison inmates from gaining a hearing.
Private prison inmates do enjoy one doctrinal advantage over their counterparts in public prisons, an advantage that
should, in theory at least, increase the likelihood that prisoners' claims against private prison officials will succeed when
like claims against public prison officials would fail. Under Richardson v. McKnight, private prison inmates filing
Section 1983 actions need not overcome prison officials' claims of qualified immunity. As a result, should private
prison inmates be able to make a showing of unconstitutional treatment, private prison guards will be unable to escape
liability on the grounds that the right they violated was not "clearly established" at the time of the violation.
Richardson, however, is unlikely to make much difference to private prison inmates. These inmates only have a
true doctrinal advantage over inmates in public prisons when the right they are asserting has not previously been
"clearly established." If, however, prisoners are to succeed in vindicating constitutional rights not already clearly
established, judges must add to the set of prisoners' rights already recognized. And at present, there is little reason to
expect federal judges to do so. Only during the late 1960s and 1970s did the Supreme Court seem willing to extend
prisoners' constitutional protections. And even during this period, the extent of this willingness was limited. The
decades since, moreover, have seen a reinstatement of the "hands-off" attitude that predated that brief period of
expansion. This recent retrenchment has been marked by a series of decisions paring back the rights articulated during
the period of reform and creating new and substantial hurdles to the success of prisoners' constitutional claims. And
these conditions are unlikely to change while public attitudes to incarcerated offenders remain as they are. Thus, the
denial to private prison guards of the defense of qualified immunity is unlikely to benefit sufficient numbers of inmate
plaintiffs to act as a meaningful check on the excesses of private contractors.
It might still be objected that, while courts are deferential to government officials, this deference is unlikely to
extend to employees of for-profit prison-management companies. Private prison administrators and employees might
thus not benefit from the culture of judicial deference to prison officials. This objection, however, misunderstands the
role that judicial deference plays in prisoners' rights cases. Recovery is difficult for prisoners, not because courts
routinely show deference to the individual prison officials against whom suit is brought, but because, in the crafting of
applicable constitutional standards, courts defer to the position and expertise of prison officials in general. Because the
scope of prisoners' rights under prevailing constitutional doctrine will be the same whether prisoners are housed in
public or private facilities, private prison employees defending prisoner suits will enjoy the benefits of judicial
deference to prison officials, whatever individual judges in specific cases may feel about the for-profit character of
private prisons.
2. Accreditation.
It is a standard requirement of state enabling statutes that private prison operators achieve and maintain official
accreditation from the American Correctional Association (ACA), an independent "organization of correctional
professionals dating to 1870." The ACA sets standards governing every aspect of penal life and, on request, certifies the
facilities that meet these standards to a satisfactory degree. The requirement that private prisons receive ACA
accreditation is certainly desirable; indeed, in this regard, the private sector, having been forced to satisfy ACA
standards, is ahead of many public-sector facilities, 20 percent of which did not have such accreditation in 2001.
Still, it would overestimate the effect of ACA accreditation to assume that this requirement sufficiently checks
private-sector abuses. For one thing, ACA visits are highly structured, so that "certification [indicates] compliance with
standards for only a brief period." Moreover, the standards are largely procedural in character, generally satisfied by a
showing as to "what the written procedures of the institution lay down as operational processes, rather than observing
whether those processes in fact are followed." Arguably, these problems could be resolved by an overhaul in the
accreditation process, and such an overhaul would certainly be welcome. In its current form, however, the ACA is
unlikely to undertake sufficient reform to ensure adequate protection against inmate abuses. For one thing, ACA
officials are generally chosen from the ranks of experienced corrections officials. As a result,personal and professional
relationships between ACA overseers and prison management are not uncommon, creating a common sympathy and
sense of purpose that tells against both more meaningful standards and more rigorous enforcement. n198 Moreover, the
institutions being inspected "have to pay for the whole procedure," providing income on which the ACA is dependent
for its survival. For this reason, "a degree of capture is likely."
One could imagine a system of ACA accreditation that would serve as a meaningful check on declining prison
conditions. Emphasis could be placed on ensuring conditions consistent with the humanity principle, prioritizing
physical safety and the meeting of basic human needs. To be successful, however, any such reform would need the
backing of ACA membership and state officials alike. Moreover, more frequent and effective monitoring would be
required, which is both expensive and itself susceptible to the problems of capture. These problems are not
insurmountable ones. However, where the state's aim in privatization is to save money, little progress may be expected
toward effective ACA standards that satisfy the humanity principle.
3. Monitoring.
As John Donahue has observed, "full, effective monitoring [of private prisons] is a tall order." Why is this so? In the
prison context, the hidden delivery of the contracted-for services means that the contract is fulfilled away from the
scrutiny of the buyers - in this case, the state. Prisons are often large, sprawling institutions, housing anywhere from
several hundred to several thousand inmates. At any time in a given facility, therefore, scores and perhaps hundreds of
employees are operating in a volatile environment, shielded from public view.
The call for monitoring is the usual response when concern is expressed regarding the possibility of abuses by
private prison contractors. Yet, available data reveal good reason to doubt the efficacy of the monitoring regimes in
place to oversee contractual compliance. The most comprehensive survey on the question was conducted in December
1997. n204 This survey found that, of the twenty-eight state and federal government agencies then in the midst of
"active contracts with privately operated [penal] facilities ... twenty reported using monitors in addition to contract
administrators," suggesting that fully eight agencies used no monitoring at all. The twenty agencies that reported using
on-site monitoring provided survey information for ninety-one separate contracts. Of these, forty-six - slightly over half
- reported having monitors on-site on a daily basis. The remainder had monitors on-site weekly (five), monthly
(sixteen), quarterly (ten), "on an "as needed' basis or on an annual or semi-annual basis" (nine), with three contracts
conducting all their monitoring off-site.
What should be made of this data? Given the enormity of the task of overseeing contractual performance under
circumstances of "hidden delivery" in crowded and bustling institutions, it seems plain that systems under which
monitors make only occasional on-site visits are inadequate to the task - even assuming, as the data suggest, multiple
monitors per visit. As the authors of the study themselves note, "where monitoring is so limited, it is unlikely that
contracting agencies are able to provide more than a cursory assessment of the contractor's performance." Certainly,
those contracts that provide for full-time on-site monitors are an improvement over those that allow for only occasional
visits: the average permanent on-site monitor spends an average of 7.25 hours per day, working five days a week, in the
monitored facility. But still, given the scope of prison contracts and the range and extent of the interactions and
activities within any given prison, it seems unlikely that comprehensive and meaningful oversight can be achieved by a
single monitor spending an average of thirty-six hours a week on-site.
It is theoretically possible that a comprehensive system of contractual oversight could check the temptation of
contractors to cut costs in ways likely to harm inmates, if the contractors actually believed that the decisions made by
their employees would be observed and recorded by monitors committed to enforcing the terms of the contract. But this
possibility provides little comfort if - as the data suggest - no such comprehensive system actually exists.
Why are existing monitoring systems so inadequate? The answer is at least in part financial. Monitoring is
necessarily labor intensive and therefore expensive, requiring an investment that states - which turned to privatization to
save money - are not eager to make. States may try to pass the cost of monitoring onto the contractor, but such efforts
are ill-advised. Unless the contract specifies the amount contractors must spend in this regard, contractors' interest in
cutting costs - not to mention their interest in reducing the effectiveness of monitors in exposing contractual violations will likely lead to an investment too small to serve the purpose. And were the contract to stipulate the expenditure of an
amount sufficient to ensure effective monitoring, it could well erase the possibility of any profit margin for the
contractor. Private prison providers already operate on extremely narrow profit margins, so if the state is to have any
contracting partner at all, imposing such stipulations would also necessarily drive up the contract price for the state.
There is no way around it: if monitoring is to be effective, the state must bear the cost.
Even assuming adequate financial investment on the part of the state, however, there remains a further obstacle to
the effective monitoring of private prisons: the risk of "agency capture." Agency capture occurs when "regulators come
to be more concerned to serve the interests of the industry with which they are in regular contact than the more remote
and abstract public interest." The worry here is that monitors will become too closely aligned with the facility being
monitored, leading them to overlook or miss altogether evidence of abuse.
Although relations between state-employed monitors and private prison management are likely to be closest when
monitoring is carried out by a full-time on-site inspector, opportunities will exist for a rapport to develop between
inspectors and contractors, whether the monitor is permanent or makes only periodic inspections. These actors,
generally drawn from the same pool of corrections professionals, all share a common interest, knowledge base,
professional community, and perhaps most importantly, a sense of the difficult challenges involved in running a prison
and a concomitant sympathy with the perspective of prison administrators. Such a rapport can orient the monitor toward
the interests of the contractor, making it less likely that contractual performance will be challenged. Equally
significantly, the "revolving door" between state agencies and private providers can "create [a] subtle conflict of
interest," as monitors who might at some point seek to move from public to private employment try to avoid alienating
potential future employers in the course of performing their current responsibilities.
Effective monitoring thus appears to have two key requirements: sufficient financial investment, and a commitment
to overcoming the risk of agency capture. Even still, the scope of activity within the prison and the hidden delivery of
prison services may limit the likely effectiveness of any monitoring scheme. Notice, moreover, that there is a tension
between these requirements, in that the more time monitors spend on-site, the greater the risk of agency capture.
Although this tension need not undermine the possibility of effective monitoring, it does further indicate the limits of
monitoring as a possible check on contractor excesses.
4. Competition and the Threat of Replacement.
Even assuming a contract could be drafted with sufficient specificity to reflect the desired results and even if an
effective system of monitoring were in place, prison contractors need not fear exposure of noncompliance absent a
credible threat of replacement. Plainly, the states need to house their prisoners somewhere. Contractors know this, and
know too that states face great obstacles to finding suitable alternative accommodations for their prisoners. They will
therefore understand that, notwithstanding threats to this effect, contractual noncompliance need not necessarily mean a
loss of the contract.
As Donahue points out, "perfect competition - many alternative suppliers, ease of entry and exit, full information,
and so on - is out of the question here." But is the field of competition good enough to ensure a meaningful threat of
replacement in the event of nonperformance? At least three characteristics of the private prison "market" raise questions
as to the likely efficacy of such a threat in ensuring ongoing quality of service. First, as Justice Scalia points out in his
dissent in Richardson v. McKnight, the only buyers in this market are public officials, spending "other people's money."
Consequently, factors other than quality of service are liable to influence the judgment of whether to cancel or renew a
contract - for example, politicians' need to secure future campaign contributions or the business or personal connections
between politicians, corrections officials, and firm management. Second, there is a relatively small number of viable
industry participants with the experience, resources, and infrastructure necessary to make a bid. For this reason,
although a number of smaller companies have sought to break into the market, the industry continues to be dominated
by a very few major players. The limited pool of competitors can undermine the force of threatened replacement even in
the event of inadequate performance on the part of the contractor. Third, the dependence of the government on the
initial provider is compounded by the obstacles to the state's resuming the operation of a privatized facility: it would
face high start-up costs, especially if the current facility were owned by the contractor, and possible litigation arising out
of the termination of the contract. In rescinding a private prison contract, the state is therefore likely to wind up
spending more on corrections than it had before privatizing. It may thus "be cheaper for the state to accept some
contractor abuses than to remedy them by resuming state operation."
Available evidence confirms that, absent both political pressure to replace abusive or otherwise ill-performing
contractors and a willingness to bear the financial cost of such replacement, the state is unlikely to act on the threat of
rescission. It is not that state agencies never replace contractors in the event of noncompliance; states experimenting
with privatization have rescinded a number of private prison contracts after contractor abuses came to light. But what
seems to be required for such cancellation are conditions sufficiently objectionable to trigger a public outcry, an effect
that generally occurs under limited circumstances: either the inmates experiencing abusive conditions are housed by
private prisons out of state, or the exposed conditions are extremely egregious.
As to the former, at least six states have cancelled contracts "involving the shipment of [their own] prisoners to
private prisons in another state"following allegations of "vendor violations." Among them was Missouri, which pulled
eight hundred of its prisoners from three Texas jails managed by Capital Correctional Resources, Inc. (CCR), after a
leaked videotape showed Missouri inmates in CCR's Brazoria facility "forced to crawl on the floor, shocked with
electric prods, [and] bitten by police dogs."
As to the latter, in 1995, for example, the INS cancelled its contract with Esmor Correctional Services for the
operation of its Elizabeth, New Jersey, facility after it came to light that Esmor's practices included the "cutting [of]
financial corners" on food, so that at some Esmor facilities "there were often only 30 meals to feed 100 inmates,
because Esmor did not want to pay for more." Detainees were also denied such essentials as clean underwear and
sanitary napkins, and Esmor even charged them "for lost eating utensils, clothing and drinking cups." Investigations into
the New Jersey facility also revealed that guards who were ill-trained, overworked, and outnumbered had routinely
abused inmates physically, "shackled them during visits [and] placed them in punishment cells for little documented
reason ... [as] part of a systematic methodology designed by some Esmor guards as a means to control the general
detainee population."
To take one further example, in 2004, in the wake of extensive reports of abuse, the state of Louisiana closed its
Tallulah Correctional Center for Youth. Tallulah had been operated by Trans-American Corporation, a company run by
a local businessman whose father was "an influential state senator."At the Tallulah facility, inmates had "regularly
appeared at the infirmary with black eyes, broken noses or jaws or perforated eardrums from beating by the poorly paid,
poorly trained guards or from fights with other boys." One inmate suffered regular beatings from guards, and after
fifteen months, a judge ordered that he be released so he could receive medical attention. By this time "his eardrum had
been perforated in a beating by a guard, he had large scars on his arms, legs and face, and his nose had been broken so
badly that he [spoke] in a wheeze." Trans-American "scrimped on money for education and mental health treatment ...
to earn a profit," and meals at the facility were "so meager that many boys lost weight [and c]lothing [was] so scarce
that boys [fought] over shirts and shoes."
The willingness of state agencies to cancel contracts under these limited circumstances suggests that the threat of
replacement may serve to check at least some contractor excesses, particularly when the private prison is located in
another state. But taken as a whole, the evidence suggests not a readiness to rescind contracts when there is evidence of
widespread abuse but reluctance on the part of states to do so even in the face of long-term concerns with prison
conditions. Wisconsin, for example, waited five years after allegations first surfaced of physical and sexual abuse of
Wisconsin prisoners in a CCA-run prison in Tennessee before announcing its intention to cancel its contract and bring
its prisoners home, although the allegations had been confirmed by a team of Wisconsin state investigators shortly after
being raised. And Louisiana's Tallulah Correctional Center for Youth, which the state finally closed in 2004, had by that
time seen allegations of severe abuse of prisoners for a full decade.
To make the threat of replacement meaningful, legislators must commit to bearing the cost when the evidence of
abuse suggests the need to do so. Yet, where the state's priority is saving money, this willingness is unlikely to be
forthcoming absent extreme circumstances and a public outcry. As a consequence, the threat of replacement cannot be
expected to deter any but the most extreme abuses.
Effective restraints on private prisons have not emerged
Sharon Dolovich, Professor of Law, UCLA School of Law, 2005, Duke Law Journal, December, State Punishment and
Private Prisons, p. 500-1
E. Private Prisons: Problems and Prospects
The foregoing survey suggests that, although existing oversight and accountability mechanisms are not wholly
ineffectual, they fall far short of providing adequate safeguards against prisoner abuse. Ideally, private prisons would
allow states to harness "[the] willingness and ability [of the private sector] to innovate in pursuit of profits" within a
regulatory structure that effectively checked any efforts by contractors to save money in ways likely to put inmates at
risk. But this is not the regime currently in place.
Instead, absent the restraining power of effective regulatory and oversight mechanisms, private prison contractors
have acted largely as earlier predicted. That is, they have sought to increase their margins by considerably reducing their
labor costs, systematically cutting salaries and benefits to employees, and underinvesting in training. They have done
so, moreover, without fear of either contravening statutory civil service protections or meeting collective resistance
from their workers. Not only are the employees of private prisons not state employees, a fact that allows their employers
to set contract terms with minimal restrictions, but private prison employees are also not generally union members. As
employees of private companies, guards in private facilities are not eligible for membership in the American Federation
of State, County, and Municipal Employees (AFSCME), which has so effectively represented publicly employed
correctional officers nationwide. Nor have private prison guards tended to form their own unions, as "private
correctional companies make every effort not to employ unionized workers and not to let their workforce join any
union."
Nor have predicted innovations in prison management through privatization come to pass. Instead, the private
prisons of today function very much like public prisons, only with a cheaper labor force. Private prisons thus generally
exhibit all the particularized characteristics that make public prisons dangerous places: the considerable discretion and
power conferred on guards; the fear on all sides; the simultaneous monotony and high pressure of the prison
environment; inmates' possible proclivity to violence; and the relative social and economic disempowerment of prison
guards, who do a difficult job in a tense and dangerous environment and for whom power over prisoners constitutes
both a rare perquisite and an outlet for frustration. But in addition, private prison employees are likely to be less
qualified (because less well remunerated) and less well trained than their public-sector counterparts.
Given this situation, it seems likely that private prisons as currently constituted would turn out to be more violent
places than their state-run counterparts. And in fact, although much of the available data is inconclusive regarding the
overall quality of conditions in private prisons as compared with public facilities, meaningful data do exist showing
elevated levels of physical violence in private prisons.
For example, in 1997, researchers at the U.S. Department of Justice Bureau of Justice Assistance (BJA) surveyed
private prison operators and received responses pertaining to sixty-five of the eighty private correctional facilities then
in operation in the country. They then compared this information to comprehensive data on public prisons nationwide.
Comparing the number of "major incidents," including "assaults, riots, fires and other disturbances" in the public
prisons over twelve months with those occurring in private facilities over the same period, the survey found a greater
number of such incidents per one thousand inmates in the private prisons: 45.3 per 1,000 inmates in public prisons, as
compared with 50.5 in private facilities. When inmate assaults were taken alone, the disparity was even more marked:
25.4 per 1,000 inmates in publicly run facilities, as compared with 35.1 in private prisons.
These data, moreover, do not account for the greater proportion of maximum-security inmates in publicly run
facilities - 19.8 percent as compared with only 4.6 percent in private facilities. Maximum-security prisoners are so
classified because they are considered a much greater security risk and are thus likely to be more violent than prisoners
with lower security classifications. One should thus expect public prisons, which house a higher proportion of
maximum-security inmates, to be more violent than private ones. That private prisons are more violent than public ones
despite the lower security classification of private prison inmates suggests that particular violence-fostering forces are at
work in private prisons that are not present in public prisons, or at least not present to the same degree. This hypothesis
is reinforced by the picture that emerges once the data are adjusted to compare only "the medium and minimum security
public facilities with the same type of private facilities." Here, the difference is even more pronounced, with 29.6
"major incidents" per 1,000 inmates at public prisons, as compared with 48.0 in the private facilities. For inmate
assaults taken alone, with the adjustment for security classification, public prisons had 20.2 assaults per 1,000 inmates,
as compared with 33.5 in private facilities.
The data on staff assaults likewise changed notably once the classification levels were taken into account. Private
prisons did slightly better than public prisons on this measure when the full complement of publicly held maximumsecurity inmates was included: per 1,000 inmates, there were 12.7 assaults on staff in private prisons as compared with
13.8 in public prisons during the twelve-month period studied. However, when the data were recalculated to include
only medium-and minimum-security inmates, researchers found 8.2 such assaults per 1,000 inmates in public facilities,
as compared with 12.2 in private prisons.
Other studies have also found elevated violence levels in private prisons as compared with public ones. For
example, according to Judith Greene, a New York-based expert on private prisons, a comparative study of "serious
incidents" in public and private facilities in Oklahoma over a three-year period found that "private prisons recorded
more than twice as many incidents as public ones." Similar findings were also made in an earlier study commissioned
by the Tennessee Department of Corrections (TDOC). The TDOC study compared two public prisons and one prison
run by CCA. Although the study authors claimed to have found no significant differences among the prisons in terms of
quality, n273 the empirical data on which this conclusion was based tell a different story. In particular, over the fifteen
months studied, "the private prison reported significantly more (214) injuries to prisoners and staff, compared to 21 and
51 for the two state prisons respectively," and "the private prisons also reported 30 incidents of the use of force [against
inmates by guards], compared with 4 and 6 respectively for the state prisons." As with the BJA study above, inmate
characteristics were not consistent across the three Tennessee facilities, with each facility housing "quite different types
of inmates in terms of the socio-demographic characteristics reported, age and race, criminal history and custody
classification." That this is so, however, only strengthens the point, for prisoners assigned to the care of private prison
providers tend to be the "cream of the crop," those thought to be less inclined to violence or other forms of
troublemaking. One should thus have expected fewer incidents of injuries and use of force in Tennessee's private prison,
rather than the other way around.
Certainly, nothing in the foregoing discussion goes to show that the state's use of private prisons could never satisfy
the humanity principle. What it does show is that, when the state looks to privatization to save money on the cost of
corrections, there is reason to expect conditions of confinement to fall below even that level of quality and safety that
can be reasonably expected of those charged with the difficult task of running the prisons. When the state's aim is
saving money, it will be unwilling to undertake measures that will substantially raise the cost of privatization, even
when doing so could arguably ensure more meaningful protections for vulnerable inmates. So the state will invest
minimally in monitoring contractual compliance, placing perhaps one full-time monitor at each site, despite the arguable
need for a full-time team of monitors if the effort is to be at all effective. When money is the state's primary concern, it
will hesitate to rescind contracts even when evidence of abuse is considerable, fearing the costs such a move would
entail. It will also forbear from specifying contractual terms requiring private contractors to provide minimum levels of
staffing and training for private prison guards and stipulating the salaries and benefits to be paid to them. Doing so
would only increase the cost of contracting to the state and would, moreover, greatly tie the hands of contractors, for
whom cutting labor costs is the central available means to keep expenses down.
It is possible that the hazards private prisons pose under these circumstances might be mitigated considerably were
society committed to satisfying the demands of the humanity principle and willing to pay the cost of effective regulatory
tools. Still, even assuming such a commitment, obstacles would remain to eliminating gratuitously inhumane treatment
in private prisons. Contracts would still be incomplete and would continue to accord residual control rights to private
prison administrators and guards, thus allowing scope for abuses. Even assuming a public commitment to adequate
oversight, many aspects of prison life would inevitably still go unobserved. And though one might contemplate a
change in the public sentiment regarding the cost of corrections, contractors themselves will still be motivated by the
desire for profit. This means that even under the altered circumstances contemplated, the contractors' interests would
remain at odds with those of the humanity principle, continuing to place a burden of particularly rigorous oversight on
the state.
A2: Private Prisons Cheaper
The cost saving argument is false – private prisons don’t take expensive inmates
Mary Sigler, Professor of Law, Arizona State University College of Law, 2010, Florida State University Law Review,
Private Prisons, Public Functions, and the Meaning of Punishment, p. 157-9
Despite the ideological appeal, the primary impetus for the move to private prisons in the United States was and remains
financial. As prison costs continued to rise throughout the last several decades, private corrections companies offered to
house and manage inmates at substantially lower rates than the states were able to achieve themselves. In 2008, for
example, California's contract with GEO Group, Inc. cost the state $ 60 per inmate per day, compared to $ 118 per daythe average cost for the state to house inmates in its own facilities. n51 Although savings rates in other jurisdictions are
less dramatic-ranging from 2 to 15%-it still amounts to millions of dollars in savings annually. n52 According to the
private providers, the key to private sector cost savings is cheaper private-sector labor. In California, for example, state
corrections officers, covered by collective bargaining agreements, earn up to $ 35 per hour, while GEO employees, who
are not unionized, earn between $ 10 and $ 16 per hour. In addition, private operators can shift and consolidate
geographically disparate prisoner populations, concentrating inmates in facilities located in areas with low real estate,
wage, and construction costs. Finally, because private firms must compete against industry rivals, as well as government
itself, they have the necessary incentives to develop innovative corrections strategies and streamline their operations in
order to win and retain government contracts.
Unfortunately, this upbeat picture of the public-private comparison obscures more than it clarifies. As an initial
matter, the studies (and contracts) that reflect dramatically reduced per diem rates in private facilities are misleading
even on their own terms. Inmates with significant mental or physical health needs cost more to incarcerate than inmates
without such problems. Similarly, both violent inmates and particularly vulnerable inmates require more restrictive-and
more expensive-security measures to ensure the safety of inmates and prison staff. Private contractors routinely decline
to accept such inmates, an option unavailable to state-run facilities. Moreover, contract per diem rates typically do not
include the costs of programming and medical services that governments must pay for separately. More generally, the
promised innovation and dramatically lower recidivism rates never materialized.
Meanwhile, focusing on cost comparisons to the exclusion of other considerations means neglecting a range of
important values at stake in the corrections context, implicitly accepting efficiency as the prime value of penal policy.
n59 In fact, several of the practical concerns raised by privatization generally-market failure, public accountability,
democratic legitimacy, and nonpublic motives-apply with special force in the context of prison privatization.
A2: Market Ensures Success
Government contracted prisons can fail without impact because the government is stuck
picking up the costs
Mary Sigler, Professor of Law, Arizona State University College of Law, 2010, Florida State University Law Review,
Private Prisons, Public Functions, and the Meaning of Punishment, p. 155-6
A "market failure," as I use the term here, occurs when the ordinary operation of market mechanisms cannot be
counted on to yield optimal outcomes. Thus, for example, if a government contracts with a private firm for the provision
of an essential service that requires significant initial capital expenditures and expertise, the government is in a poor
position to negotiate-or deny-contract extensions if it has become dependent on the private provider's service. In a
variety of contexts, including prison construction and management, the firm may be able to raise rates dramatically over
the initial contract bid because the government cannot forgo the service-say, housing dangerous criminals-and lacks
readily available alternatives. Additionally, private firms face the risk of business failure. A corporation may
mismanage its operation to the point of bankruptcy, leaving the government either to bail out the operation financially
or scramble to identify alternative service providers, which may themselves extract a premium based on the
government's desperation for immediate supply. Other sources of market failure include the use of campaign
contributions to influence the public officials who award government contracts and the inherent challenges of drafting
suitable contracts that specify with adequate precision the terms and expectations of performance. In the absence of
"solid and measurable performance standards," it will be difficult to determine whether government is "getting the full
measure of services it expects at the promised lower cost."
The market doesn’t discipline poor performance in the prison industry
Mary Sigler, Professor of Law, Arizona State University College of Law, 2010, Florida State University Law Review,
Private Prisons, Public Functions, and the Meaning of Punishment, p. 160-1
The traditional market mechanisms for disciplining poor performance may not operate effectively in the private
prison setting. As an initial matter, the "beneficiaries" of the contract-inmates-are not the purchasers of prison services.
Thus, unlike the market for private education, for example, where families can research alternatives, make informed
selections, and withdraw from unsatisfactory arrangements, inmates do not have a say in the decision whether to enter
or terminate a private prison contract. Although the same is true when governments contract out for garbage collectionthe beneficiaries of the contract are not a party to the contract-dissatisfied citizens, unlike inmates, are in a strong
political position to demand improved service. Inmates, by contrast, are virtually powerless to effect change in the face
of unsatisfactory prison conditions. Most lack the basic right to vote; and in any case, they constitute an unpopular
minority without political influence or efficacy.
Even governments may not be well positioned to respond to noncompliance by private prison contractors. Public
officials dissatisfied with a contractor's performance-or rate increases-cannot realistically cancel the contract before
finding alternative placements for hundreds of inmates. The high start-up costs for prison operations ensure that a
relatively small number of players will (and do) dominate the market, giving them considerable leverage when
negotiating with governments desperate to place inmates. Although a handful of states have canceled contracts for
noncompliance, they appear reluctant to rescind promptly even in cases of extreme inmate abuse.
A2: Private Prisons Pay Taxes
Private prison companies pay little tax
American Civil Liberties Union, 2011, Prisons for Profit: A look at prison
privatization,
http://www.acluohio.org/assets/issues/CriminalJustice/PrisonsForProfit2011_04.pd
f
While private prison companies publicly promise taxpayers that their presence in the state will
generate revenue, they lobby behind the scenes and otherwise do everything they can to minimize
the taxes they actually pay. CCA, for example, pulled out of its contract at a Cleveland facility it
operated in the 1990s because it refused to pay its share of local taxes.54 In 1998 the industry even
persuaded Arizona to pass a law retroactively prohibiting the state from taxing income derived from
the detention or incarceration of prisoners by private companies.5 And another way private prison
companies avoid paying their share. A federal tax loophole allows such shelters to avoid taxation at
the company level. Although this exemption “was established for legitimate real estate companies,”
CCA tried to funnel revenue generated by its prison operations into the loophole shelter in order to
avoid paying taxes on it. The loophole, while part of the federal tax code, shields companies from
tax liability at both the state and federal levels.57 The IRS sued CCA in 2002 after its audit of the
company suggested it was abusing tax loopholes to avoid paying its share of federal taxes.58 CCA
settled with the IRS in 2002, agreeing to pay $54 million in back taxes.59 While CCA’s lawyers
“continue[d] to appeal the IRS’ findings,” the IRS “questioned the validity of a previous tax
avoidance structure, and CCA was forced to pay delinquent taxes.”60 Tax-exempt bonds issued
through partnerships with local governments and municipalities are another way private prison
companies avoid tax liability.T hese “backdoor taxpayer subsidies” can cost the taxpayer more than
public financing would because the local government might issue higher interest securities than
would be the case with ordinary public financing. Tax-exempt bonds can also shift the
responsibility of economic failure from the private prison company to the taxpayer, leaving the
taxpayer and the government completely liable for the company’s failure. This happened in Texas
in 1988 when Dallas-based Detention Services, Inc. convinced the government of Zavala County to
finance one of its facilities with county bonds. The company was supposed to repay its debt to the
county from its prison revenues. But after it cancelled another contract it had with the District of
Columbia on account of excessive prisoner violence and staff corruption, the company had no
revenue, and the Zavala county government had no choice but to make bond payments out of its
operating fund, which sent it into deficit and default on the bonds.61 When private prison companies
market their “services” to state governments, they often promise to “fully indemnify” those
governments from liability for their failures. In other words, the companies promise to take total
responsibility for all of the debts and other obligations that the state’s taxpayers would ordinarily be
stuck with in the event of failure.
A2: Public Correction Officer Units Push for Imprisonment
This doesn’t justify private prisons
Sharon Dolovich, Professor of Law, UCLA School of Law, 2005, Duke Law Journal, December, State Punishment and
Private Prisons, p. 530-1
There is thus a tension between the existence of a successful and influential private prisons industry and the demands of
the parsimony principle. But private prisons are by no means unique in the threat they pose to the legitimacy of
particular punishments and to citizens' trust in the institutions of the criminal justice system. This threat exists whenever
sentencing policy is influenced by interest groups with a strong financial interest in increased incarceration and longer
prison sentences. And were private prison providers to seek to wield such influence themselves, they would enter a
politicized arena in which several other interest groups already work to shape criminal justice policies in ways
consistent with the financial interests of their members.
Perhaps the most notable example in this regard is the California Correctional and Peace Officers' Association
(CCPOA). This organization, one of the most powerful lobby groups in California, represents all of California's
correctional officers and consistently supports state legislation providing for enhanced sentencing, seemingly regardless
of the legitimacy of the punishments thereby imposed. The existence of CCPOA and other criminal-justice interest
groups, however, does not vindicate the state's use of private prisons, as some commentators appear to believe. n368
Any time criminal justice policy is influenced by parties hoping to further their financial interests through increased
incarceration regardless of the demands of legitimate punishment, it is cause for concern. The fact that the private prison
industry is not the only group motivated in this direction suggests not that there is no problem with private prisons, but
that the problem is more widespread than previously recognized.
As private prison advocate Charles Logan sees it, introducing the private prisons industry into the political mix
better serves "the public interest" by forcing competing interest groups - correctional officers' unions, state agencies, etc.
- to press their claims in the most vociferous way possible. This process, Logan claims, allows policymakers and
citizens to "sort[] out the [public interest] from among competing definitions and claims." My own view is somewhat
different. To satisfy the parsimony principle, the state is obliged to avoid taking steps likely to corrupt the conditions of
legitimate punishment. Yet the presence of any powerful interest group with a financial stake in increased incarceration
creates the danger of such a corrupting influence. Granted, this sort of political pressure is routinely brought to bear by
interest groups of all kinds hoping to influence all manner of legislation. But whatever one might think of this system
more generally, it is out of place when the issue is criminal punishment.
In the case of punishment, the state is taking the extraordinary step of heavily burdening the security and integrity
of individual citizens. Imposing such a burden is not beyond the scope of the state's legitimate power. But if the exercise
of this power is to be legitimate, it must be consistent with the priority of the most urgent interests. And if the criminal
justice system is to earn citizens' trust, the process for setting the terms of state punishment must be driven by a goodfaith effort by all parties to craft policies consistent with the demands of legitimate punishment. However, where it is
known that the process and state officials themselves are open to the influence of parties standing to benefit financially
from increased incarceration, not only may the punishments flowing from particular criminal justice policies prove
illegitimate, but citizens are also likely - rightly - to view them as such.
The private prison industry and the correctional officers' unions are not the only entities with a financial interest in
increased incarceration rates. As Lilly and Knepper have shown, "there are many more companies profiting from the
routine, low-profile world of providing prison services," among them private companies who provide prisons with
services including "food service design and management, consulting and personnel management, architecture and
facilities design, vocational assessment, medical services, drug detection, and transportation... . And that is not all."
There are also those companies that supply prisons and jails with equipment, selling them, among other things,
"protective vests for guards, closed-circuit television systems, mechanical and electronic locks, perimeter security and
motion detection systems, fencing, flame-retardant bedding, furniture, footwear, lighting, and linen along with shatterproof plastic panels, tamper-proof fasteners, and clog-proof waste disposal systems." As this account suggests, prisons
are big business. There is thus a wide range of private interests in a position to profit from an increase in the number of
people incarcerated, and potentially a large number of interest groups with the desire, and perhaps the financial
wherewithal, to seek to influence sentencing policies in ways consistent with their financial interests.
Widening the lens to include this range of parties with a financial interest in incarceration may seem to extend the
parsimony concern too far, perhaps thereby negating its critical bite. Am I saying that no one in contemporary society
should be able to make money from operating prisons? If so, what about correctional officers, who work for salaries and
benefits? And how would prisons receive the goods and services that are incontestably necessary if they are to run at
all? The point here is not that, for punishment to be legitimate, no one can benefit financially from corrections; as the
questions just posed indicate, such a requirement would be a practical impossibility. That this is so, however, does not
require averting one's eyes from the potential dangers created when people or entities with a strong financial interest in
increased incarceration are also positioned to influence the nature or extent of punishments imposed. Where such
circumstances exist, it is essential to call attention to them and be explicit about the threat they represent. Society must
also do all it can to protect the process of crafting sentencing policies from any undue influence.
Admittedly, short of generating an explicit and widespread commitment among legislators and their constituents to
satisfying the conditions of legitimate punishment, a total abatement of the sort of undue influence over sentencing
policy described here is unlikely. Absent that commitment, the interest-group model of politics that reigns in the
criminal justice context will not likely be widely condemned or even questioned. Campaign finance reforms designed to
constrain illegitimate influence would certainly be welcome, as would tighter conflict-of-interest rules, for example,
those prohibiting legislators or their spouses from owning stock in companies that stand to gain significant economic
benefits from increased incarceration. But any such efforts are likely to be limited in their effects, for several reasons.
First, even absent overt lobbying and obvious conflicts of interest, there is reason to expect a sympathy of perspective
and priorities between policymakers and at least some private interests. This is particularly so in the private prison
industry, where the "revolving door" between government and private corrections firms means that private prison
executives will often have a considerable range of contacts in the government of the state whose prison markets they
seek to access. Second, effective lobby groups will still be able to find mechanisms to promote their financial interests
in ways less obvious - and thus less open to regulation and less susceptible to critique - than direct lobbying of
legislators. And third, these methods will do little or nothing to prevent the kind of access and influence enjoyed by
private-sector members of organizations like ALEC. Yet even granting that campaign finance reform efforts are likely
to fall short, society remains obligated to recognize the broader legitimacy problem posed by the possibility of private
influence over the legislative process and to do what it can to ameliorate it.
Contracting to Privates Generally Fails
Many reasons government contracting of private services fails
Mike Tartaglia, 2014, October, Student of law at Boston University School of Law, PRIVATE PRISONS, PRIVATE
RECORDS, Boston University Law Review, p. 2215-6
Public law scholars have made important contributions to the literature, but their arguments are incomplete because
they do not consider the problem through a commercial - or more specifically a contract-theory - lens. Commercial law
scholars, for their part, have largely ignored public-private contracting, focusing instead on commercial interactions
between firms or contracts between individuals. This Article bridges the gap between public and commercial law in the
universe of public-private contracting by considering how economic analysis of contract law bears upon the unique
problems of public-private contracting. It argues that certain types of public-private contracts do not function like
standard commercial agreements and the law (and the contracting parties) should recognize this.
First, the government lacks the proper incentives to ensure high-quality service provision. This is particularly true
where the service in question "benefits" the disenfranchised in society such as criminals and the poor who have no
economic power (as a commercial customer would) and limited political power. Also, budget and resource pressure
often account for the decision to outsource in the first place, meaning that governments are likely (and sometimes
obligated) to accept the lowest bid for a project without regard to quality. These problems are likely to be worse in
public-private contracting as opposed to direct service provision because by outsourcing, governments buy the right to
point the finger at the private party if service provision is poor. Also, private actors may be motivated by profit
maximization goals more so than government workers providing the same services.
Second, even if the government were incentivized to provide high-quality service, it faces systematic difficulties in
doing so. Although advocates of privatization herald the move from state-run monopoly to a competitive market, the
reality is that in certain types of public-private contracting, the seller-side market is shallow. For instance, very few
entities are positioned to provide such complex and sophisticated services as administering Medicaid for a state or
running a prison, which has no commercial analogue. Therefore contracts do not benefit from the competitive effects of
an efficient market. In addition, many government services are difficult to specify and monitor - at least quality is
difficult to specify and monitor. Cost-savings are somewhat easier to detect. But despite best efforts, contracts are
inherently incomplete. Even if a party can specify performance metrics, it may get just what it asked for, sacrificing
compliance with higher-level goals.
These two systematic biases cause the transacting parties to impose a cost on service recipients in the form of lowquality service. As a result (putting aside potential bargaining problems), contracts are underpriced. Thus, what appears
to be a cost-saving mechanism is instead a systematic market failure. Absent competitive market mechanisms, the
contracting parties are not forced to internalize these costs. This Article proposes a counterintuitive solution grounded in
contract theory and doctrine to force the parties to internalize the cost of poor service provision: reading a mandatory
duty into public-private contracts.
Private contracting fails in many instances
Mike Tartaglia, 2014, October, Student of law at Boston University School of Law, PRIVATE PRISONS, PRIVATE
RECORDS, Boston University Law Review, p. 2213-4
Public-private contracting is big business. Over a quarter of local government services are now provided to some
degree by private entities. And state governments' use of privatization is on the rise. n2 While most sectors of the
economy have struggled since 2008, government contracting is seeing growth rates in the double digits. n3
Governments now contract with private companies to run public schools, n4 operate prisons, n5 place foster children,
n6 administer welfare benefits, and provide military services n8 and border control, n9 among myriad other examples.
Public-private contracting has continued to gain favor during the recent recession in part as an answer to state budgetary
problems.
The attractiveness and success of privatization derive from its presumed ability to reduce the costs of providing
government services while maintaining or, ideally, improving quality. Yet time has shown that government efforts to
save costs, for certain types of contracts, often come at the expense of service quality. For instance, New Jersey
contracted with a private company to run halfway houses for the state. The fee to house an inmate in a private halfway
house is half what it costs to keep an inmate in a state prison. But to cut costs and maximize profits, private companies
skimp on security and inmates regularly escape and commit further violent crimes, or are raped or killed at private
halfway houses.
In another example, IBM entered into a $ 1.34 billion, ten-year deal with the state of Indiana to administer public
benefits programs. The deal was supposed to save Indiana $ 500 million, n16 but the contract collapsed in 2009.
Beneficiaries now allege that, because IBM wrongly denied Medicaid benefits or caused lapses in benefits, they were
unable to buy crucial medications or receive life-sustaining medical procedures.
Indeed, public-private contracting is a pervasive endeavor that has attracted much scholarly attention from public
law scholars in recent decades. For instance, Martha Minow and Jody Freeman recently suggested that: Our current
government contracting system does not work. It is largely invisible and unresponsive to the public in whose name it is
undertaken. The existing rules and procedures fail to guard adequately against inefficiency, conflict of interest, and
abuse. And much of the power being exercised through contracting is largely unaccountable to any regime of oversight market, legal, or political.
“Pay to Stay” Prisons are Not Good
Pay to stay programs will not free-up resources to improve other prisons. More people
will simply be incarcerated
Laurie L. Levenson & Mary Gordon, law professors, 2012, “The Dirty Little
Secrets of Pay to Stay,” Michigan Law Review,
http://www.michiganlawreview.org/articles/the-dirty-little-secrets-about-pay-tostay
While increasing the use of pay-to-stay facilities might allow more resources to
be used for those inmates who are stuck in public correctional institutions,
diverting inmates to private facilities will not reduce the public jail
population sufficiently to free up additional resources for the remaining
inmates' care. Past experience suggests that the overall incarceration rate will
continue to climb. According to the Bureau of Justice Statistics, incarceration
rates have grown by 243% over the last two decades. This increase in
incarceration is due significantly to the "war on drugs," and there is little
incentive to end that war when it is the financial lifeline for contractors who
build private correctional facilities and politicians who benefit from their
contributions. In fact, as Sharon Dolovich observed in Changing the Terms of the
Private Prisons Debate, "The state's use of private prisons could create a
powerful interest group with a financial interest in increased incarceration."
Pay to stay will not lead to jail reforms
Laurie L. Levenson & Mary Gordon, law professors, 2012, “The Dirty Little
Secrets of Pay to Stay,” Michigan Law Review,
http://www.michiganlawreview.org/articles/the-dirty-little-secrets-about-pay-tostay
There is also no indication that the pay-to-stay system will free up dollars to
reform our public jails. Private entities will benefit, but given the relatively
few persons placed in pay-to-stay facilities, there is unlikely to be a
noticeable effect on the taxpayer and the government's budget for law
enforcement. Moreover, since some of the pay-to-stay programs are actually
operated by local governmental entities, there may be a reduction in the
resources available for general jail populations if the programs draw from the
same general budget or taxpayer base.
Pay to stay discourages officials from improving prisons
Laurie L. Levenson & Mary Gordon, law professors, 2012, “The Dirty Little
Secrets of Pay to Stay,” Michigan Law Review,
http://www.michiganlawreview.org/articles/the-dirty-little-secrets-about-pay-tostay
Second, pay-to-stay programs reduce incentives for public officials to address
the problems in our correctional facilities. Face it: generally, the public
doesn't want to know what is happening in our correctional facilities. The pay-
to-stay program reduces further the urgency for politicians to address these
problems because the "decent folk" participating are no longer subjected to the
intolerable conditions of ordinary jails.
Eliminating pay to stay makes reform more likely
Laurie L. Levenson & Mary Gordon, law professors, 2012, “The Dirty Little
Secrets of Pay to Stay,” Michigan Law Review,
http://www.michiganlawreview.org/articles/the-dirty-little-secrets-about-pay-tostay
Not until a celebrity is incarcerated does the public even pay attention to problems in the correctional system. Paris
Hilton's recent headline-making incarceration identified some of the problems with regular jails while publicizing the
availability of private facilities for those with means. Public reaction was mixed. As reported by the Los Angeles Times,
some people were sympathetic to Hilton. One claimed, "I am not a fan of Paris Hilton, and I don't think it's fair she got
such a big sentence. But if they can go easy on her, why not [Valerie Jacquez] too?" Yet, others decried the "unequal
justice." Hilton's fellow inmate Rhonda Thompson found it unfair that Hilton was allowed to leave early, stating, "I
didn't want to be here either. It was a nightmare."
Ironically, without pay-to-stay, celebrity incarcerations could actually generate real support for programs to reform our
jails. Celebrity incarcerations can focus attention on a reform movement that does not otherwise enjoy broad public
support or have the means to generate it. Even with pay-to-stay programs, many used Hilton's experience to publicize
needed correctional facility reforms, especially solving the overcrowding problem in California's correctional facilities.
Recent proponents of reform include Patrick McGreevey in a July 2007 article in the Los Angeles Times and Bob
Herbert in a June 2007 New York Times column that used attention surrounding Hilton's incarceration to publicize the
over-incarceration of school children. Imagine the calls for reform if Paris Hilton had shared in the squalor facing the
general jail population.
Pay to stay programs will not increase rehabilitation
Laurie L. Levenson & Mary Gordon, law professors, 2012, “The Dirty Little
Secrets of Pay to Stay,” Michigan Law Review,
http://www.michiganlawreview.org/articles/the-dirty-little-secrets-about-pay-tostay
Third, although the pay-to-stay concept presumes that private inmates are
willing and able to pay for what they really need-rehabilitation-pay-to-stay
programs generally fail to address that need. In terms of day-to-day operations
and structure, private prisons function very similarly to public prisons.
Generally, the focus of pay-to-stay programs is not on rehabilitating their
paying customers. Rather, they are "gray-bar hotels" that provide safer, cleaner
room and board for their clientele. Much of the problem with incarceration today
is that it focuses solely on punishment and not on rehabilitation. Many states
face serious problems with poor conditions in overcrowded prisons.
Rehabilitation may be the answer-but pay-to-stay does not necessarily make
rehabilitation more likely. It often just makes the stay more pleasant for those
who can afford it.
Instead of actually rehabilitating inmates, pay-to-stay programs merely give the
illusion that participants pay their debt to society and come out reformed by
the experience. However, private jails do not name rehabilitation as a selling
point to their prospective clients. Rather, they attract clientele with sales
pitches like, "bad things happen to good people." Then, they provide safe
accommodations but little in the way of rehabilitation. In order for pay-to-stay
programs to provide a better product for their customers, they should shift the
largely myopic focus currently placed on the inmates' physical accommodations to
concentrate on another component essential to a successful jail: effective
rehabilitation programs. Currently, there are no standard rehabilitation
programs required at many pay-to-stay facilities, and, given the facilities'
profit motives, they have little incentive to spend resources on programs that
could actually reform their charges and prevent them from becoming re-offenders.
Pay to stay programs increase justice system inequality
Laurie L. Levenson & Mary Gordon, law professors, 2012, “The Dirty Little
Secrets of Pay to Stay,” Michigan Law Review,
http://www.michiganlawreview.org/articles/the-dirty-little-secrets-about-pay-tostay
Fourth, pay-to-stay programs create a slippery slope for inequality in the criminal justice system. Before you say this is
far-fetched, consider a different scenario. Trials in Judge Jones's courtroom take forever. He is generally unpleasant and
the courtroom accommodations are spartan. In the summer, the courtroom bakes like a barbecue. In the winter, the
bailiff wears long underwear beneath his uniform. To defray operational costs, the court proposes allowing defendants
to hire judges from a panel to try their cases in more plush surroundings. All of the same rules of evidence and law
would apply, but through this pay-to-try system, defendants could avoid the unpleasantness of the run-down
neighborhood courthouse.
Would we countenance quasi-private judges in the criminal justice system, the functional equivalent of what already
largely exists on the civil side in the form of arbitration? If not, how do we explain why a defendant should be able to
pay for incarceration in a private facility? Both pay-to-stay and the hypothetical pay-to-try threaten to institutionalize
financial inequalities in our criminal justice system; both also increase the likelihood that individuals will be judged
more on the size of their pocketbooks than the merits of their cases.
Wilderson Answers
Progress Against Racism Now
We are not post-racial, but there is progress against racism
James Forman, Jr, January 2011, Cardozo Law Review, Professor, Georgetown University Law Center.
ACKNOWLEDGE RACE IN A "POST-RACIAL" ERA: THE BLACK POOR, BLACK ELITES, AND AMERICA'S
PRISONS, p. 791
For many of this symposium's panelists, the event's very title - Acknowledging Race in a "Post-Racial" Era - presented
a challenge. Numerous panelists criticized the term "post-racial," arguing that race remains central to understanding
how America operates. By contrast, members of the criminal justice panel did not even feel the need to ask whether we
are post-racial. Few people would assert that our criminal system is anywhere near the point that race no longer matters.
This is not to say that racism infects our criminal system to the extent it once did. Our criminal system - like the rest of
American society - has been profoundly transformed. Blacks accused of crimes are no longer lynched without trial or
worked to death on plantation-like settings; black victims are no longer systematically ignored by police and courts. n4
Yet despite this progress there is no serious argument to be made that our criminal system is post-racial. Why not?
A2: “Burn it Down” Alternative
The Alt demands a violent revolution which will be destroyed and only result in a new
dictatorship
Feldheim (Prof of Philosophy @ SUNY) 8
(Andrew, REPLY TO WARD CHURCHILL, dspace.sunyconnect.suny.edu, GoogleScholar)
Churchill’s assumption that, when a nonviolent group becomes a viable threat to an oppressive
government, this group would be destroyed or become self-eliminating, does not match the evidence,
since both Dr. King’s movement in the United States and Gandhi’s movement in India survived their successes.
In many of the
cases under discussion,
violent resistance simply does not make good practical sense, and would result in
unacceptable losses, while contributing relatively little to the overall cause. One reason for the inappropriateness of violent
action in these circumstances is stressed repeatedly by Sharp and others. Implicit in almost all the situations under discussion is the
assumption that the
group doing the oppressing has more weapons, soldiers and all the other
necessary ingredients for violent action than the group being oppressed. In such cases, if the
subjugated group insisted on using violent means as their primary mode of operation,
their movements would effectively amount to suicide, and the actual benefit to their
cause would probably be negligible. It may be objected at this point that some groups and individuals
protesting in this way, and willingly giving their lives, could inspire others through their martyrdom. Their sacrifice could
possibly elicit the sympathy of other groups that may be willing to help their cause. In answer to this, one only has to consider
the response that people are likely to elicit using this method in a nonviolent, as opposed to a violent, way. The Buddhist
monks who immolated themselves in protest during the Vietnam War, and the followers of Gandhi
who were beaten and killed, represent this method done nonviolently. They sacrificed their lives while
making sure to harm no one else. In contrast, consider the suicide bomber who kills herself in the
middle of a crowded marketplace, taking as many people as possible along with her. She is representative
of martyrdom conducted violently. Both are types of martyrdom; but to the former, we assign virtue, while, to the
latter, condemnation. The nonviolent variation is far more likely to elicit the support of other
groups and even nations. It is practically superior.
There is also something to be said about the difference in results that
are obtained when a dictatorship is overthrown through violent means, as opposed to nonviolent means. Gene Sharp notes that,
essential to the removal of a dictatorship and the establishment of democracy, is a fundamental redistribution of the governmental power
structure. Violence may be less conducive towards this goal. According to Sharp, A military coup d’ etat against a dictatorship
might appear to be relatively one of the easiest and quickest ways to remove a particularly repugnant regime. However, there are
very serious problems with that technique. Most importantly, it leaves in place the existing maldistribution of power between the
population and the elite in control of the government and its military forces. The removal of particular persons and cliques from the
government positions most likely will merely make it possible for another group to take their place. (Sharp, 2002, p. 5) Sharp feels
that, unless
the dictatorial power structure is changed to a more democratically oriented
power structure, the stage is set for another tyrannical group to simply take the place of the
deposed one. At this point, in order to avoid the same reliance on absolutes that I find inappropriate in Churchill’s argument,
it is important to recognize the crucial role that the uniqueness of every situation has in determining the proper methods to be employed
on behalf of an oppressed or subjugated group. There are kernels of truth in Churchill’s contentions that have more or less import in
accordance with the specific situation. There are cases, both historical and theoretical, for which violent action seems the only logical
alternative. The extermination of the European Jews during World War II seems like such an instance. One important difference
between this example and the oppression of Indians by the English, or African-Americans by the United States, is that, in the case of the
Nazis, it was not an instance of the same type of repression. They did not wish to subjugate or exploit the Jews; they simply wished to
kill them.
Fortunately, however, the Nazi example is the exception rather than the rule. Most cases of oppression stem from a wish
to subjugate a population in order to profit unfairly from their labors, or to usurp their property. To give Mr. Churchill his due, even in
cases such as these, there may be factors, specific to particular situations, which call for violent resistance or a mixture of violent and
nonviolent resistance. Each situation must be evaluated on its own merits. My contention is not that there is no truth in Churchill’s
position. Rather, it is his use of absolutes, his insistence that violence or the threat of violence is always necessary, that demands a
Churchill presents his contention, that violence or the threat of violence is a
necessary constituent of successful resistance to tyranny, in a way that makes it
unfalsifiable. This, however, does not add to its merit. To potential counterexamples, Churchill simply relies on the presence of
refutation.
groups which may be potentially violent. The very nature of tyranny, however, naturally encourages feelings of resentment and
hostility on the part of the oppressed. If one looked hard enough, he could always find some indication of potential violence, even if
not overt. Churchill’s argument will, in this sense, always be true, but gives us no more actual information than a tautology. Also,
since Churchill supposes a causal relationship between violent resistance and the defeat of dictatorships, and this construct is placed
within an historical context, we can never know what would have happened if there had been no violence or the threat of violence, but
only nonviolent resistance. While it may not be possible to prove Churchill’s argument unsound, its very nature makes it of limited
utility.
And this true in North America too – The immediate effect of the alternative would be a
massive increase in direct anti-Black and anti-Red violence
Fire Rider (advocate from the Northern Ontario Ojibwe and American Indian Movement) 5
(Marty, Why Churchill Political Agenda is Wrong for Indians, February 2005, http://aimfireca.tripod.com/id44.html)
I think we can agree that Churchill's political philosophy is liberal socialism regarding foreign policy. If that is his
position he is entitled to that. In describing his fellow Americans, for instance, Churchill cannot refrain from using the language of spite.
The victims of the Sept. 11 attacks he compares to Nazis; even middle-class Americans he disparages as vapid hedonists too engrossed
in materialism to care about the sufferings of "brown-skinned" people overseas. Basically, he advocates that America is the evil empire
if America was to collapse as a legal
government does Churchill or anyone believe that in a chaotic world with no laws that
Indians would fair any better. It would be a world of unchecked Indian racism and
discrimination by all hate groups be it left or right. If the September 11th victims are technocrats supporting the
of the world and needs to be replaced or severely weakened. But
evil economic empire of America as Churchill professes, then is not he a hypocrite by educating American youth who will graduate with
degrees to enter the technocratic economy of America? But what does the U.S. foreign policy have to do with a starving
Indian on the Reservation or urban living? What has Churchill done for the poor Indian. Our AIM organization has
helped to repair Indian elders homes; provide reservation security to protect the people against police abuse and tribal goons; written
legal constitutions for reservations; legal research for tribes and individuals; feeding and clothing Indians; having the local Bureau of
Indian Affairs office investigated for incompetence and complacency by the Inspector Generals Office, including other agencies as well,
or advising Tribal governments. Further, our national Indian radio talk show is effective in educating and empowering our people. In
other words we are in the field fighting daily for our people. We are AIM and we would lay our lives down in defense of our people, but
only if attacked. If violence was the only Indian way we as a people would have been exterminated a long time
ago. We in AIM do not support, nor condone violence. We do not need someone making noisy speeches about foreign policy, we need
leaders fighting for and helping our people on domestic issues, that is the real AIM. Sadly, there is much discrimination in the world
regarding indigenous people. But American Indians have problems nearly as equal such as third world living conditions on many
reservations. Churchill's foreign policy speeches using the September 11th victims to make his political point only reflects negatively on
all Indians and harms the good name of the American Indian Movement and it true leaders. Unfortunately, Churchill is causing division
in Indian country. Indian strength lies in our unity, not disunity. And his actions and words only leads to Indian disunity. That was the
same strategy used by non Indians to divide and conquer Indian people to take our lands. If ones walks the Red Path they remain
balanced in the middle thus avoiding the political extremes of left or right. Remember being Indian is not a democrat or republican,
liberal or conservative. Being Indian is following the traditional ways of tolerance, accepting all races and culture, spirituality with
respect for all life. Taking of any life was only for defense, not taking a life for a political belief or to make a statement. Churchill's ways
of advocating violence against innocent lives makes a mockery of the Great Spirits teachings that all life is sacred. If you are going to be
an Indian activist you have to do more than beat the drum to make a lot of noise. You have feel the drum beat in your heart. Times have
changed, and people like Churchill can stand outside the government while make all the noise, however very little has changed in 30
years for American Indians. Our future success will come through not only our unity, but by Indians learning the American political and
legal landscape while working from within the system to change the system for Indian justice and sovereignty. We need to remove the
path of ignorance, apathy and hatred to build a bridge of respect and honor of those who have walked before us. We need to never lose
advocating the
overthrow of the American government is irresponsible resulting in a destabilizing political
environment where Indians would be subject to further violence, racism and
discriminating.
site of our culture by staying spiritually strong. Eventually the changes can be positive for our people. But
The purity of “burning it all down” is useless if it fails to achieve the destruction of the USfg.
Day 9
(Christopher, The Historical Failure of Anarchism: Implications for the Future
of the Revolutionary Project,
http://mikeely.files.wordpress.com/2009/07/historical_failure_of_aanarchism_chri
s_day_kasama.pdf)
The strength of anarchism is its moral insistence on the primacy of human freedom over political
expediency. But human freedom exists in a political context. It is not sufficient, however, to simply
take the most uncompromising position in defense of freedom. It is neccesary to
actually win freedom. Anti-capitalism doesn’t do the victims of capitalism any good if you don’t
actually destroy capitalism. Anti-statism doesn’t do the victims of the state any good if you
don’t actually smash the state. Anarchism has been very good at putting forth visions of a free
society and that is for the good. But it is worthless if we don’t develop an actual strategy
for realizing those visions. It is not enough to be right, we must also win.
Revolutionary goals without a realistic chance of victory are unethical . No concrete plan for
revolutionary change ensures failure and defeat by right wing revolutionary forces
Day 9
(Christopher, The Historical Failure of Anarchism: Implications for the Future
of the Revolutionary Project,
http://mikeely.files.wordpress.com/2009/07/historical_failure_of_aanarchism_chri
s_day_kasama.pdf)
Finally revolutionaries
have a responsibility to have a plausible plan for making revolution.
Obviously there are not enough revolutionaries to make a revolution at this moment. We
can reasonably anticipate that the future will bring upsurges in popular opposition to the existing system.
Without being any more specific about where those upsurges might occur it seems clear that it is from the
ranks of such upsurges that the numbers of the revolutionary movement will be increased, eventually
leading to a revolutionary situation (which is distinguished from the normal crises of the current order only
by the existence of a revolutionary movement ready to push things further). People who are fed up with the
existing system and who are willing to commit themselves to its overthrow will look around for
likeminded people who have an idea of what to do. If we don’t have a plausible plan for making
revolution we can be sure that there will be somebody else there who will. There is no
guarantee that revolutionary-minded people will be spontaneously drawn to anti-authoritarian politics. The
plan doesn’t have to be an exact blueprint. It shouldn’t be treated as something sacred. It should be
subject to constant revision in light of experience and debate. But at the very least it needs to be able
to answer questions that have been posed concretely in the past. We know that we will never
confront the exact same circumstances as previous revolutions. But we should also know that certain
problems are persistent ones and that if we can’t say what we would have done in the past we should not
expect people to think much of our ability to face the future. There is a widespread tendency in the
anarchist movement (and on the left in general) to say that the question of how we are going to
actually make a revolution is too distant and therefore too abstract to deal with now.
Instead it is asserted that we should focus on practical projects or immediate struggles. But the practical
projects or immediate struggles we decide to focus on are precisely what will determine if we ever move
any closer to making revolution. If we abdicate our responsibility to try to figure out what it will
take to actually make revolution and to direct our current work accordingly we will be caught
up in an endless succession of “practical projects and immediate struggles” and when confronted with
a potentially revolutionary situation we will be pushed to the side by more politically
prepared forces (who undoubtedly we will accuse of “betraying” the revolution if they don’t shoot all of
us). We will be carried by the tide of history instead of attempting to steer our own course. And by allowing
this to happen again it will be we who have really betrayed the revolution. The net result of the refusal to
deal with what it will actually take to make a revolution is that anarchism has become a sort of directionless
but militant reformism. We are either building various “counter-institutions” that resemble nothing so much
as grungier versions of the social services administered by different churches; or we are throwing
ourself into some largely reactive social struggle in which our actions are frequently bold
and courageous, but from which we never build any sort of ongoing social movement (let
alone a revolutionary organization).
The immediate effects of such a revolution would be mass starvation or a new authoritarian
regime
Day 9
(Christopher, The Historical Failure of Anarchism: Implications for the Future
of the Revolutionary Project,
http://mikeely.files.wordpress.com/2009/07/historical_failure_of_aanarchism_chri
s_day_kasama.pdf)
There are basically two reasons it is impossible to create a stateless classless society within the
confines of single country. The first is economic and the second is military. The economic reasons
are important. As discussed above capitalism is a world system. This means that no country is selfsufficient. Obviously some countries have more or less potential for self-sufficiency, but certain problems
are effectively universal. Some countries, as a consequence of their population, simply could not hope to
meet their own food needs. This is the case for many of the smaller more densely populated industrialized
countries. Some countries, as a consequence of their underdevelopment under colonialism, don’t have the
means of producing manufactured goods (clothing, tractors, etc…) on which they depend. And practically
all countries are dependent on at least a few strategic minerals that simply don’t exist
within their borders. Chromium, for example, is neccessary for all sorts of machine
parts. It is concentrated largely in Southern Africa. Similarly much of the world is dependent on foreign
petroleum. The point here isn’t that one can’t imagine the eventual creation of a self-sufficient economy
within a particular country, but rather that the economies that revolutionaries inherit are not
self-sufficient and the severing of international trade (by either the revolutionary forces or by
foreign powers) will have very disruptive consequences. These are two-sided. First, industries that
depend on foreign materials will stop functioning and people will no longer have access to goods that are
only available from abroad. Second, economic sectors that produce for the international market, will either
cease to produce or will produce goods for which there is no domestic demand. The situation of Cuba is
instructive here. Many of the economic problems that confronted the Cuban Revolution would have been
just as present if that revolution had a libertarian character. Cuba’s economy was classically dependent.
Sugar and tourism brought in the cash with which to purchase foreign goods including food, medicine,
clothing, petroleum, and automobiles. In the intervening 37 years it is a scandalous consequence of the
relations developed with the Soviet Union that Cuba has not converted its agricultural sector to become selfsufficient in food. The result is that Cuba now faces the same problem it would have faced then: how to
make that conversion without access to foreign capital. The technology involved in growing, harvesting
and processing sugar is not the same as that involved in producing rice or produce. It is not a simple
matter to knock down all the sugar cane and begin growing grains and vegetables. It takes
time to get a whole new kind of agriculture going. How are people going to eat in the
meantime? The practical answer inevitably is that dependence on the world market can only be reduced
in steps. But so long as people are producing for the world market they can not be said to have smashed
class society altogether — they continue to be exploited by an international capitalist class. To make matters
worse the refusal of parts of the world market to trade (as in the case of the U.S. embargo of Cuba) drives
down the price that the goods will command on the world market. The only way to recover that lost profit
(for there is no point in engaging in international trade if it doesn’t generate profits that can be invested in
making the country self-sufficient) is to raise the level of exploitation of the producers. Worse, the
administrative apparatus of the revolutionary regime, whether it is called a “workers state” or “a federation
of free collectives” is the body that must do the exploiting. Good intentions are feeble protection
against the logic of the world market. How does the apparatus respond when the
producers, entirely in the spirit of the revolution, say that they will not be exploited and
go on strike? This is precisely the dilemna that has confronted every revolution that has
survived longer than a year.
Can’t Decide on Costs
We don’t have enough data to determine if public or private prisons are more cost
effective
Sasha Volokh, February 25, 2014, Washington Post, http://www.washingtonpost.com/news/volokhconspiracy/wp/2014/02/25/are-private-prisons-better-or-worse-than-public-prisons/ (Sasha Volokh lives in Atlanta with
his wife and three kids, and is an associate professor at Emory Law School. He has written numerous articles and
commentaries on law and economics, privatization, antitrust, prisons, constitutional law, regulation, torts, and legal
history.)
Difficulties in Calculating Costs
How do we determine whether the private sector costs more or less than the public sector? Ideally, we could work off of
a large database of public and private prisons and run a regression in which we controlled for jurisdiction, demographic
factors, size, and the like. In practice, this large database doesn’t exist, and so the typical study chooses a small set of
public and private prisons that are supposedly comparable.
Unfortunately, this comparability tends to be elusive; the public and private facilities compared often “differ in ways
that confound comparison of costs.” Sometimes no comparable facilities exist. Even where there are two prisons in the
jurisdiction housing inmates of the same sex and security classification, they generally differ in size, age, level of
crowding, inmate age mix, inmate health mix, and facility design. In particular, adjusting facilities to take into account
different numbers of inmates is problematic, since facilities with more inmates, other things equal, benefit from
economies of scale.
The GAO explained recently that “[i]t is not currently feasible to conduct a methodologically sound cost comparison of
BOP [Bureau of Prisons] and private low and minimum security facilities because these facilities differ in several
characteristics and BOP does not collect comparable data to determine the impact of these differences on cost.” The
data problem mostly comes from the private side: information collected by the BOP from private facilities isn’t
necessarily reported the same way that public data are reported, and the reliability of the data is uncertain. Moreover,
“[w]hile private contractors . . . maintain some data for their records, these officials said that the data are not readily
available or in a format that would enable a methodologically sound cost comparison at this time.”
Not only do federal regulations not require that these data be collected, but also, and more troublingly, at the time of the
GAO study in 2007, the BOP didn’t believe there was value in developing the data collection methods that would make
valid public-private cost comparison methods possible.
Probably more seriously, public and private prisons have accounting procedures that “make the very identification of
comparable costs difficult.”
First, public systems, unlike private ones, don’t spread the costs of capital assets over the life of the assets, which
overstates public costs when the assets are acquired and understates them in all other years.
Second, various public expenditures, including employee benefits and medical care, utilities, legal work, insurance,
supplies and equipment, and various contracted services, are often borne by various other agencies in government,
which might understate public costs by 30%–40%. One of the often-ignored costs in the public sector is the cost of
borrowing capital. Conversely, governments bear some of the costs of private firms, for instance, in various cases,
contract monitoring, inspection and licensing, personnel training, inmate transportation, case management, and
maintaining emergency response teams.
And third, when public or private prisons incur overhead expenditures, there’s no obvious way of allocating overhead to
particular facilities—Gerald Gaes gives a specific numerical example involving Oklahoma, a high-privatization state,
where a difference in overhead accounting can alter the estimate of the cost of privatization by 7.4%.
As a bottom-line matter, McDonald says “the uncounted costs of public operation are probably larger than of private
operation”; I tend to agree, but it’s hard to say for sure.
Studies demonstrate the impossibility of determining costs
Sasha Volokh, February 25, 2014, Washington Post, http://www.washingtonpost.com/news/volokhconspiracy/wp/2014/02/25/are-private-prisons-better-or-worse-than-public-prisons/ (Sasha Volokh lives in Atlanta with
his wife and three kids, and is an associate professor at Emory Law School. He has written numerous articles and
commentaries on law and economics, privatization, antitrust, prisons, constitutional law, regulation, torts, and legal
history.)
The best way to see the importance of various assumptions is to look at a handful of cases where different people tried
to estimate the same cost. Without committing myself to which way is correct, I’ll provide three examples: from Texas
in 1987, from Florida in the late 1990s, and from the federal Taft facility in 1999–2002.
a. Texas
In Texas, private prisons were authorized in 1987 with the passage of Senate Bill 251, which required that private
prisons show a 10% savings to the state compared to public prisons. Calculating the per-diem cost of public
incarceration in Texas thus became important, since the maximum contract price for private providers would be 90% of
that cost.
The Texas Department of Corrections came up with an estimate of $27.62 per prisoner per day. The Legislative Budget
Board, however, proposed a number of additions to this cost, to better take into account the costs of complying with
Ruiz v. Estelle (S.D. Tex. 1980), building costs, the state’s cost to provide additional programs that private firms would
be required to provide, and the like. All these adjustments raised the estimated per-diem cost by about 50%—to $41.67.
In the end, contracts were awarded within a range of $28.72 to $33.80—between the two estimates, though closer to the
first one.
b. Florida
In Florida, the Office of Program Policy Analysis and Government Accountability (OPPAGA) compared two private
facilities, Bay Correctional Facility and Moore Haven Correctional Facility, with a public facility, Lawtey Correctional
Institution. After various adjustments, OPPAGA calculated that the per-diem operating cost was $46.08 at Bay and
$44.18 at Moore Haven, versus $45.98 at Lawtey; that is, Bay was 0.2% more expensive and Moore Haven 3.9%
cheaper than the public facility.
The Florida Department of Corrections had come up with its own numbers: $45.04 at Bay and $46.32 at Moore Haven,
versus $45.37 at Lawtey: Bay was 0.7% cheaper and Moore Haven 2.1% more expensive.
The Corrections Corporation of America (CCA), which operated Bay, submitted comments to the OPPAGA report,
disputing its analysis. It disagreed that Lawtey was comparable, and suggested its own adjustments to OPPAGA’s
numbers for all three facilities. Under CCA’s analysis, Bay cost $45.16 and Moore Haven cost $46.32, versus $49.30
for Lawtey, which comes out to cost savings of 8.4% for Bay and 6.0% for Moore Haven. (OPPAGA, understandably,
disputed CCA’s modifications.)
c. Taft
Perhaps the best example of competing, side-by-side cost studies comes from the evaluation of the federal facility in
Taft, California, operated by The GEO Group.
A Bureau of Prisons cost study by Julianne Nelson compared the costs of Taft in fiscal years 1999 through 2002 to
those of three federal public facilities: Elkton, Forrest City, and Yazoo City. The Taft costs ranged from $33.21 to
$38.62; the costs of the three public facilities ranged from $34.84 to $40.71. Taft was cheaper than all comparison
facilities and in all years, by up to $2.42 (about 6.6%)—except in fiscal year 2001, when the Taft facility was more
expensive than the public Elkton facility by $0.25 (about 0.7%). Sloppily averaging over all years and all comparison
institutions, the savings was about 2.8%.
A National Institute of Justice study by Douglas McDonald and Kenneth Carlson found much higher cost savings. They
calculated Taft costs ranging from $33.25 to $38.37, and public facility costs ranging from $39.46 to $46.38. Privatesector savings ranged from 9.0% to 18.4%. Again averaging over all years and all comparison institutions, the savings
was about 15.0%: the two cost studies differ in their estimates of private-sector savings by a factor of about five.
Why such a difference? First, the Nelson study (but not the McDonald and Carlson study) adjusted expenditures to iron
out Taft’s economies of scale from handling about 300 more inmates each year than the public facilities. Second, the
studies differed in what they included in overhead costs, with the Nelson study allocating a far higher overhead rate.
These examples should be enough to give a sense of the complications in cost comparisons; given these difficulties, it’s
not surprising that most studies have fallen short.
Can’t Decide the Debate Based on Quality
Can’t determine if public or private prisons provide superior quality
Sasha Volokh, February 25, 2014, Washington Post, http://www.washingtonpost.com/news/volokhconspiracy/wp/2014/02/25/are-private-prisons-better-or-worse-than-public-prisons/ (Sasha Volokh lives in Atlanta with
his wife and three kids, and is an associate professor at Emory Law School. He has written numerous articles and
commentaries on law and economics, privatization, antitrust, prisons, constitutional law, regulation, torts, and legal
history.)
Difficulties in Figuring Out Quality
Moving on to quality comparisons, the picture is similarly grim. As with cost comparisons, sometimes no comparable
facility exists in the same jurisdiction. Some studies solve that problem by looking at prisons in different jurisdictions,
an approach that has its own problems. (If one had a large database with several prisons in each jurisdiction, one could
control for the jurisdiction, but this approach is of course unavailable when comparing two prisons, each in its own
jurisdiction.) Many studies just don’t control for clearly relevant variables in determining whether a facility is truly
comparable.
Often, the comparability problem boils down to differences in inmate populations; one prison may have a more difficult
population than the other, even if they have the same security level. Usually prisons have different populations because
of the luck of the draw, but sometimes it’s by design, as happened in Arizona, when the Department of Corrections
chose “to refrain from assigning prisoners to [a particular private prison] if they [had] serious or chronic medical
problems, serious psychiatric problems, or [were] deemed to be unlikely to benefit from the substance abuse program
that is provided at the facility.” It’s actually quite common to not send certain inmates to private prisons; the most
common restriction in contracts is on inmates with special medical needs. Not that all prisons must have totally random
assignment; it can be rational to tailor prisoner assignment to, say, the programming available at a prison. But such
practices do have “the unintended effect of undermining cost comparisons.” Another practice that undermines cost
comparisons is contractual terms limiting the private contractor’s medical costs, though nowadays it’s increasingly
common for contracts to transfer all medical costs to the contractor.
Some performance studies rely on surveys administered to a nonrandom sample of inmates or potentially biased staff
surveys, or generally to populations of inmates or staff that aren’t randomly assigned to public and private prisons.
Survey data aren’t useless, but they’re rarely used with the appropriate sensitivity to its limitations. The higher-quality
survey-based studies don’t give the edge to either sector.
Most damningly, many studies don’t rely on actual performance measures, relying instead on facility audits that are
largely process-based. Some supposed performance measures don’t necessarily indicate good performance, especially
when the prisons are compared based on a “laundry list” of available data items (for instance, staff satisfaction) whose
relevance to good performance hasn’t been theoretically established.
Gerald Gaes and his coauthors conclude that most studies are “fundamentally flawed,” and agree with the GAO’s
conclusion that there is “little information that is widely applicable to various correctional settings.”
I would add that accountability mechanisms vary widely—the standard U.S. model, the Florida model, and the U.K.
model are different, and these in turn differ from the French model or the model proposed for prison privatization in
Israel before the Israeli Supreme Court invalidated the experiment. When a prison study finds some result about
comparative quality, that tells us something about comparative quality within that accountability structure; if a private
prison performed inadequately under one accountability structure, it might do better under a better one.
As an example of the problems with current quality metrics, consider the performance evaluations of the private federal
Taft facility. As with the cost studies discussed above, we have two competing studies, the National Institute of Justice
one by McDonald and Carlson and a Bureau of Prisons study by Scott Camp and Dawn Daggett—the companion paper
to Julianne Nelson’s cost paper.
The Bureau of Prisons has evaluated public prisons by the Key Indicators/Strategic Support System since 1989. Taft,
alas, didn’t use that system, but instead used the system designed in the contract for awarding performance-related
bonuses. Therefore, McDonald and Carlson could only compare Taft’s performance with that of the public comparison
prisons on a limited number of dimensions, and many of these dimensions—like accreditation of the facility, staffing
levels, or frequency of seeing a doctor—aren’t even outcomes. Taft had lower assault rates than the average of its
comparison institutions, though they were within the range of observed assault rates. No inmates or staff were killed.
There were two escapes, which was higher than at public prisons. Drug use was also higher at Taft, as was the
frequency of submitting grievances. On this very limited analysis, Taft seems neither clearly better nor clearly worse
than its public counterparts.
The Camp and Daggett study, on the other hand, created performance measures from inmate misconduct data, and
concluded not only that Taft “had higher counts than expected for most forms of misconduct, including all types of
misconduct considered together,” but also that Taft “had the largest deviation of observed from expected values for
most of the time period examined.” Camp and Daggett’s performance assessment was thus more pessimistic than
McDonald and Carlson’s.
According to Gerald Gaes, the strongest studies include one from Tennessee, which shows essentially no difference, one
from Washington, which shows somewhat positive results, and three more recent studies of federal prisons by himself
and coauthors, which found public prisons to be equivalent to private prisons on some measures, higher on others, and
lower on yet others.
Can’t Decide Based on Recidivism
Recidivism studies too poor
Sasha Volokh, February 25, 2014, Washington Post, http://www.washingtonpost.com/news/volokhconspiracy/wp/2014/02/25/are-private-prisons-better-or-worse-than-public-prisons/ (Sasha Volokh lives in Atlanta with
his wife and three kids, and is an associate professor at Emory Law School. He has written numerous articles and
commentaries on law and economics, privatization, antitrust, prisons, constitutional law, regulation, torts, and legal
history)
Recidivism reduction is really just one dimension of prison quality, though it’s a particularly relevant one that deserves
its own section.
If we found that inmates at private prisons were less likely to reoffend than comparable inmates at public prisons, this
would be an important factor in any comparison of public and private prisons. Unfortunately, recidivism comparisons
haven’t been very good either.
A study from the late 1990s by Lonn Lanza-Kaduce and coauthors reported that inmates released from private prisons
were less likely to reoffend than a matched sample of inmates released from public prisons, and they had less serious
offenses if they did reoffend. But this study has been critiqued on various grounds. First, not all the recidivism measures
are significant: while various reoffense-related rates were found to be significantly lower in the private sector, and while
the seriousness of reoffending was found to be significantly lower in the private sector, a time-to-failure analysis found
that there was no significant difference in the “length of time that a releasee ‘survived’ without an arrest during the 12month follow-up period.” Second, the public inmates seem to not really have been well matched to the private inmates;
they only seemed so when their descriptive variables were described at a high level of generality (e.g., custody level vs.
“the underlying continuous score measuring custody level,” whether inmates had two or more incarcerations vs. the
actual number of incarcerations, etc.). Third, the authors seem to have made the questionable decision to assign an
inmate to the sector he was released from, even if he had spent time in several sectors: thus, an inmate who spent years
in public prison and was transferred to private prison shortly before his release was classified as a private prison
releasee. Fourth, a private releasee who reoffended could take longer to be entered in the system than a public releasee,
so the truly comparable number of private recidivists may well have been larger than reported.
A later study by David Farabee and Kevin Knight that “corrected for some of these deficiencies” found no comparative
difference in the reoffense or reincarceration rates of males or juveniles over a three-year post-release period, though
women had lower recidivism in the private sector. However, this study may still suffer from the problem of the
attribution of inmates who spent some time in each sector, as well as possible selection bias to the extent that private
prisons got a different type of inmate than public prisons did.
Another study by William Bales and coauthors, even more rigorous, likewise found no statistically significant
difference between public-inmate and private-inmate recividism.
A more recent study, by Andrew Spivak and Susan Sharp, reported that private prisons were (statistically) significantly
worse in six out of eight models tested. But the authors noted that some skepticism was in order before concluding that
public prisons necessarily did better on recidivism. Populations aren’t randomly assigned to public and private prisons:
that private prisons engage in “cream-skimming” is a persistent complaint. Recall the case in Arizona, where the
Department of Corrections made “an effort to refrain from assigning prisoners to [the private Marana Community
Correctional Facility] if they [had] serious or chronic medical problems, serious psychiatric problems, or [were] deemed
to be unlikely to benefit from the substance abuse program that [was] provided at the facility.” But the phenomenon can
also run the other way. One of the authors of the recidivism study, Andrew Spivak, writes that while he was “a case
manager at a medium-security public prison in Oklahoma in 1998, he noted an inclination for case management staff
(himself included) to use transfer requests to private prisons as a method for removing more troublesome inmates from
case loads.”
Moreover, recidivism data is itself often flawed. Recidivism has to be not only proved (which requires good databases)
but also defined. Recidivism isn’t self-defining—it could include arrest; reconviction; incarceration; or parole violation,
suspension, or revocation; and it could give different weights to different offenses depending on their seriousness.
Which definition one uses makes a difference in one’s conclusions about correctional effectiveness, as well as affecting
the scope of innovation. The choice of how long to monitor obviously matters as well: “[m]ost severe offences occur in
the second and third year after release.” Recidivism measures might also vary because of variations in, say, enforcement
of parole conditions, independent of the true recidivism of the underlying population.
The study of the comparative recidivism of the public and private sector could thus use a lot of improvement.
In Florida, contractors out-performed state prisons in education and training of prisoners
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=74&ved=0CDYQFjADOEY
&url=http%3A%2F%2Fwww.researchgate.net%2Fprofile%2FSimon_Hakim%2Fpublication%2F2
57780985_Cost-Analysis-of-Public-and-Contractor-Operated-PrisonsFINAL3%2Flinks%2F00b7d525d89b12cebb000000&ei=AdxSVJHyPIObigLptICABQ&usg=AFQjCNFJ
Qb5jI4uUdkjQVhGc3OyqglbHbQ&sig2=ose4QHCyLvTCE0acg1lyBA&bvm=bv.78597519,bs.1,d.cG
E
Wilderson’s Method Fails
Wilderson’s method fails
a.) Ontological Fatalism
Wilderson’s entire argument relies on the idea of Black and White as transcendant and noncontingent ontological categories which is false and theoretically bankrupt
Hudson (Political Studies Department, University of the Witwatersrand ,
Johannesburg) 13
(Peter, Social Dynamics (2013): The state and the colonial unconscious, Social
Dynamics: A journal of African studies, DOI: 10.1080/02533952.2013.802867)
[BEGIN FOOTNOTE]
My foil here is the ontological fatalism of Frank Wilderson’s argument. See Wilderson (2008),
according to which “the only way Humanity can maintain both its corporeal and libidinal integrity is through
the various strategies through which Blackness is the abyss into which humanness can never fall” (105). And
“were there to be a place and time for blacks cartography and temporality would be impossible” (111). Here
then, the closure of colonialism is absolute.
[END FOOTNOTE]
“Whiteness” as whiteness – the meaning of whiteness and that of “blackness” – is carried via “a
constellation of postulates, a series of propositions that slowly and subtly work their way into one’s
mind and shape one’s view of the world of the group to which one belongs” – “a thousand details,
anecdote stories” which are “woven” into “prejudices, myths, the collective attitudes of a
given group” (Fanon 1968, 78, 133). This is how the “subject positions” of both whites and
blacks are constituted. We can call this constellation the Colonial Big Other (symbolic) in and through
which the colonial relation is constituted and reproduced. This Big Other is white, in that whiteness is its
master signifier and therefore all identities are “white” under colonialism.
Everyone is white in the colonial symbolic – including blacks; it is just that they are “less white” than
“whites” to the point of not being at all – Fanon says again and again that “the black man desires to be white”
– but, when he looks at himself through the eyes he has adopted, the “eyes” that are “his” – what he (qua
white eyes) sees is something that doesn’t exist – “inequality, no non-existence” (Fanon 1968, 98, original
emphasis). He “subsists at the level of non-being” (131) – just as the white, when it sees the black, sees an
other that is, as Fanon says “absolutely not self,” so does the black see himself – “as absolutely not self”
(114). This is the depth of the fissure in the black colonial subject position, caught between two impossibles:
“whiteness,” which he desires but which is barred to him, and “black- ness,” which is “non-existence.”
Colonialism, anxiety and emancipation3
Thus the self-same/other distinction is necessary for the possibility of identity itself. There always has to
exist an outside, which is also inside, to the extent it is desig- nated as the impossibility from which the
possibility of the existence of the subject derives its rule (Badiou 2009, 220). But although the excluded place
which isn’t excluded insofar as it is necessary for the very possibility of inclusion and identity may
be universal (may be considered “ontological”), its content (what fills it) – as well as the
mode of this filling and its reproduction – are contingent. In other words, the meaning of the
signifier of exclusion is not determined once and for all: the place of the place of exclusion, of
death is itself over-determined, i.e. the very framework for deciding the other and the same,
exclusion and inclusion, is nowhere engraved in ontological stone but is political and never
terminally settled. Put differ- ently, the “curvature of intersubjective space” (Critchley 2007, 61) and
thus, the specific modes of the “othering” of “otherness” are nowhere decided in advance
(as a certain ontological fatalism might have it) (see Wilderson 2008). The social does not have
to be divided into white and black, and the meaning of these signifiers is never necessary – because they are
signifiers.
To be sure, colonialism institutes an ontological division, in that whites exist in a way barred to
blacks – who are not. But this ontological relation is really on the side of the ontic
– that is, of all contingently constructed identities, rather than the ontology of the social
which refers to the ultimate unfixity, the indeterminacy or lack of the social. In this sense,
then, the white man doesn’t exist, the black man doesn’t exist (Fanon 1968, 165); and neither does the
colonial symbolic itself, including its most intimate structuring relations – division is constitutive of the
social, not the colonial division.
“Whiteness” may well be very deeply sediment in modernity itself, but respect for the “ontological
difference” (see Heidegger 1962, 26; Watts 2011, 279) shows up its ontological status as ontic. It may be
so deeply sedimented that it becomes difficult even to identify the very possibility of the
separation of whiteness from the very possibility of order, but from this it does not
follow that the “void” of “black being” functions as the ultimate
substance, the transcendental signified on which all possible forms of
sociality are said to rest. What gets lost here, then, is the specificity of colonialism, of
its constitutive axis, its “ontological” differential.
b. Generalizing from the Particular
Wilderson’s unverifiable generalizations are understandable because he relies of Lacanian
and Marxist structuralism – We’ll quote his method section
Wilderson 10
A Note on Method
Throughout this book I use White, Human, Master, Settler, and sometimes non-Black interchangeably to
connote a paradigmatic entity that exists ontologically as a position of life in relation to the Black or Slave
position, one of death. The Red, Indigenous, or "Savage" position exists liminally as half-death and half-life
between the Slave (Black) and the Human (White, or non-Black). I capitalize the words Red, White, Black,
Slave, Savage, and Human in order to assert their importance as ontological positions and to stress the value
of theorizing power politically rather than culturally. I want to move from a politics of culture to a culture of
politics (as I argue in chapter a). Capitalizing these words is consistent with my argument that the array of
identities that they contain is important but inessential to an analysis of the paradigm of power in which they
are positioned. Readers wedded to cultural diversity and historical specificity may find such shorthand
wanting. But those who may be put off by my pressing historical and cultural
particularities-culled from history, sociology, and cultural studies, yet neither historical,
sociological, nor, oddly enough, cultural-should bear in mind that there are precedents for
such methods, two of which make cultural studies and much of social science possible: the methods of
Karl Marx and Jacques Lacan. Marx pressed the microcosm of the English manufacturer
into the service of a project that sought to explain economic relationality on a global scale.
Lacan's exemplary cartography was even smaller: a tiny room with not much more than a sofa and a chair,
the room of the psychoanalytic encounter. As Jonathan Lee reminds us, at stake in Lacan's account of the
psychoanalytic encounter is the realization of subjectivity itself, "the very being of the subject. "31 I argue
that "Savage' Human, and Slave should be theorized in the way we theorize worker and capitalist as positions
first and as identities second, or as we theorize capitalism as a paradigm rather than as an experience-that is,
before they take on national origin or gendered specfficity Throughout the course of this book I argue that
"Savage' Human, and Slave are more essential to our understanding of the truth of institutionality than the
positions from political or libidinal economy. For in this trio we find the key to our world's creation as well
as to its undoing. This argument, as it relates to political economy, continues in chapter i, "The Ruse of
Analogy:' In chapter 2, "The Narcissistic Slave," I shift focus from political economy to libidinal economy
before undertaking more concrete analyses of films in parts 2, 3, and 4.
No one makes films and declares their own films "Human" while simultaneously asserting that other films
(Red and Black) are not Human cinema. Civil society represents itself to itself as being infinitely inclusive,
and its technologies of hegemony (including cinema) are mobilized to manufacture this assertion, not to
dissent from it. In my quest to interrogate the bad faith of the civic "invitation;' I have chosen White cinema
as the sine qua non of Human cinema. Films can be thought of as one of an ensemble of discursive practices
mobilized by civil society to "invite:' or interpellate, Blacks to the same variety of social identities that other
races are able to embody without contradiction, identities such as worker, soldier, immigrant, brother, sister,
father, mother, and citizen. The bad faith of this invitation, this faux interpeLlation, can be discerned by
deconstructing the way cinema's narrative strategies displace our consideration and understanding of the
ontological status of Blacks (social death) onto a series of fanciful stories that are organized around conflicts
which are the purview only of those who are not natally alienated, generally dishonored, or open to gratuitous
violence, in other words, people who are White or colored but who are not Black. (I leave aside, for the
moment, the liminality of the Native American position-oscillating as it does between the living and the
dead.)
Immigrant cinema of those who are not White would have sufficed as well; but, due to its exceptional
capacity to escape racial markers, Whiteness is the most impeccable embodiment of what it means to be
Human. As Richard Dyer writes, "Having no content, we [White people] can't see that we have anything that
accounts for our position of privilege and power . . . . The equation of being white with being human secures
a position of power:' He goes on to explain how "the privilege of being white... is not to be subjected to
stereotyping in relation to one's whiteness. 'White people are stereotyped in terms of gender, nation, class,
sexuality, ability and so on, but the overt point of such typification is gender, nation, etc. Whiteness generally
colonises the stereotypical definition of all social categories other than those of race.'
Unlike Dyer, I do not meditate on the representational power of Whiteness, "that it be made strange:' divested
of its imperial capacity, and thus make way for representational practices in cinema and beyond that serve as
aesthetic accompaniments for a more egalitarian civil society in which Whites and non-Whites could live in
harmony. Laudable as that dream is, I do not share Dyer's assumption that we are all Human. Some of us are
only part Human ("Savage") and some of us are Black (Slave). I find his argument that Whiteness possesses
the easiest claim to Humanness to be productive. But whereas Dyer offers this argument as a lament for a
social ill that needs to be corrected, I borrow it merely for its explanatory power-as a way into a paradigmatic
analysis that clarifies structural relations of global antagonisms and not as a step toward healing the wounds
of social relations in civil society. Hence this book's interchangeable deployment of White, Settler, and
Master with-and to signify-Human. Again, like Lacan, who mobilizes the psychoanalytic
encounter to make claims about the structure of relations writ large, and like Marx, who
mobilizes the English manufacturer to make claims about the structure of economic
relations writ large, I am mobilizing three races, four films, and one subcontinent to
make equally generalizable claims and argue that the antagonism between Black and Human
supercedes the "antagonism" between worker and capitalist in political economy, as well as the gendered
"antagonism" in libidinal economy. To this end, this book takes stock of how socially engaged popular
cinema participates in the systemic violence that constructs America as a "settler society" (Churchill) and
"slave estate" (Spilers). Rather than privilege a politics of culture(s)-that is, rather than examine and accept
the cultural gestures and declarations which the three groups under examination make about themselves-1
privilege a culture of politics: in other words, what I am concerned with is how White film, Black film, and
Red film articulate and disavow the matrix of violence which constructs the three essential positions which in
turn structure US. antagonisms.
This is non-falsifiable and fails – no support for generalizing from the particular
Robinson (PhD Political Theory, University of Nottingham) 05
(Theory and Event, Andrew, 8:1, The Political Theory of Constitutive Lack: A Critique)
One of the functions of myth is to cut out what Trevor Pateman terms the "middle level" of analytical
concepts, establishing a short-circuit between high-level generalizations and ultra-specific (pseudo-) concrete
instances. In Barthes's classic case of an image of a black soldier saluting the French flag, this individual
action is implicitly connected to highly abstract concepts such as nationalism, without the mediation of the
particularities of his situation. (These particularities, if revealed, could undermine the myth. Perhaps he
enlisted for financial reasons, or due to threats of violence). Thus, while myths provide an analysis of sorts,
their basic operation is anti-analytical: the analytical schema is fixed in advance, and the
relationship between this schema and the instances it organizes is hierarchically
ordered to the exclusive advantage of the former. This is precisely what happens in
Lacanian analyses of specific political and cultural phenomena. Žižek specifically advocates
'sweeping generalizations' and short-cuts between specific instances and high-level
abstractions, evading the "middle level". 'The correct dialectical procedure... can be best described
as a direct jump from the singular to the universal, bypassing the mid-level of particularity'. He wants a
'direct jump from the singular to the universal', without reference to particular contexts.
c. Ahistorical
They assume that anti-black animus arises from nothingness but its caught up in a broader
web of historical power relationships like Islamophobia and nativism
Charoenying (citing Nelson Maldonado-Torres, Prof of Ethnic Studies, UC
Berkeley) 8
(Timothy, Islamophobia & Anti-Blackness: A Genealogical Approach,
http://crg.berkeley.edu/content/islamophobia-anti-blackness-genealogical-approach)
The year 1492 marked a major turning point in the trajectory of Western
Civilization. Elementary age children are taught this as the year Columbus
famously crossed the Atlantic. An equally significant event that year, was the
Spanish conquest of al-Andalus–a Moorish province on the southern Iberian
peninsula established eight centuries earlier–and more importantly, the last
major Muslim stronghold on the European continent. Critical race scholars have
argued that these two events would not only shift the geopolitical
balance of power from the Orient to the Occident, but
fundamentally alter conceptions about religious and racial
identity. According to Nelson Maldonado-Torres, of the University of
California, Berkeley, the expulsion of the Moors from continental Europe marked
a transition from an age of imperial relations between Christian and Muslim
empires, to an age of European colonial expansion throughout the known world.
The “discovery” of “godless” natives in the Americas would also inspire the
great debates between Las Casas and Sepúlveda in 1550 on the nature of the human
soul. Such a geopolitical and philosophical shift, Maldonado-Torres
argues, would lead to a Eurocentric, re-categorization of humanity
based upon religous—and ultimately racial—differences. MaldonadoTorres has proposed that anti-black racism is not simply an extension
of some historical bias against blacks, but rather, is an amalgam
of old-world Islamophobia linked to the history of the Iberian
peninsula, and to the notion of souless beings embodied in
popular conceptions about the indigenous natives of the Americas.
These beliefs would contribute to an ideological basis for, and
justification of, colonial conquests in the name of cultural and
religious conversion, as well as pave the way for the enslavement
and human trafficking of sub-Saharan Africans.
d.) US-centricity
Bâ (teaches film at Portsmouth University (UK). He researches ‘race’, the ‘postcolonial’, diaspora, the transnational
and film ‘genre’, African and Caribbean cinemas and film festivals) 11
(Saër Maty, The US Decentred, Cultural Studies Review, volume 17 number 2 September 2011)
A few pages into Red, White and Black, I feared that it would just be a matter of time before
Wilderson’s black‐ as‐ social‐ death idea and multiple attacks on issues and scholars he
disagrees with run (him) into (theoretical) trouble. This happens in chapter two, ‘The
Narcissistic Slave’, where he critiques black film theorists and books. For example, Wilderson
declares that Gladstone Yearwood’s Black Film as Signifying Practice (2000) ‘betrays a kind of
conceptual anxiety with respect to the historical object of study— ... it clings, anxiously, to the film‐
as‐ text‐ as‐ legitimate‐ object of Black cinema.’ (62) He then quotes from Yearwood’s book to highlight
‘just how vague the aesthetic foundation of Yearwood’s attempt to construct a canon can be’. (63) And
yet Wilderson’s highlighting is problematic because it overlooks the ‘Diaspora’ or ‘African
Diaspora’, a key component in Yearwood’s thesis that, crucially, neither navel‐ gazes (that is, at the
US or black America) nor pretends to properly engage with black film. Furthermore, Wilderson
separates the different waves of black film theory and approaches them, only, in terms of how a most
recent one might challenge its precedent. Again, his approach is problematic because it does not
mention or emphasise the inter‐ connectivity of/in black film theory. As a case in point, Wilderson does not
link Tommy Lott’s mobilisation of Third Cinema for black film theory to Yearwood’s idea of African
Diaspora. (64) Additionally, of course, Wilderson seems unaware that Third Cinema itself has been
fundamentally questioned since Lott’s 1990s’ theory of black film was formulated. Yet another
consequence of ignoring the African Diaspora is that it exposes Wilderson’s corpus of
films as unable to carry the weight of the transnational argument he attempts to
advance. Here, beyond the US‐ centricity or ‘social and political specificity of [his]
filmography’, (95) I am talking about Wilderson’s choice of films. For example, Antwone Fisher
(dir. Denzel Washington, 2002) is attacked unfairly for failing to acknowledge ‘a grid of captivity
across spatial dimensions of the Black “body”, the Black “home”, and the Black “community”’ (111)
while films like Alan and Albert Hughes’s Menace II Society (1993), overlooked, do acknowledge the
same grid and, additionally, problematise Street Terrorism Enforcement and Prevention Act (STEP)
policing. The above examples expose the fact of Wilderson’s dubious and questionable conclusions
on black film. Red, White and Black is particularly undermined by Wilderson’s propensity
for exaggeration and blinkeredness. In chapter nine, ‘“Savage” Negrophobia’, he writes: The
philosophical anxiety of Skins is all too aware that through the Middle Passage, African culture became
Black ‘style’ ... Blackness can be placed and displaced with limitless frequency and across untold
territories, by whoever so chooses. Most important, there is nothing real Black people can do to
either check or direct this process ... Anyone can say ‘nigger’ because anyone can be a ‘nigger’.
(235)7 Similarly, in chapter ten, ‘A Crisis in the Commons’, Wilderson addresses the issue of ‘Black time’.
Black is irredeemable, he argues, because, at no time in history had it been deemed, or deemed through
the right historical moment and place. In other words, the black moment and place are not right because
they are ‘the ship hold of the Middle Passage’: ‘the most coherent temporality ever deemed as Black time’
but also ‘the “moment” of no time at all on the map of no place at all’. (279) Not only does Pinho’s more
mature analysis expose this point as preposterous (see below), I also wonder what Wilderson makes of
the countless historians’ and sociologists’ works on slave ships, shipboard insurrections and/during
the Middle Passage,8 or of groundbreaking jazz‐ studies books on cross‐ cultural dialogue like The
Other Side of Nowhere (2004). Nowhere has another side, but once Wilderson theorises blacks as
socially and ontologically dead while dismissing jazz as ‘belonging nowhere and to no one, simply
there for the taking’, (225) there seems to be no way back. It is therefore hardly surprising that Wilderson
ducks the need to provide a solution or alternative to both his sustained bashing of blacks and anti‐
Blackness.9 Last but not least, Red, White and Black ends like a badly plugged announcement of a
bad Hollywood film’s badly planned sequel: ‘How does one deconstruct life? Who would benefit
from such an undertaking? The coffle approaches with its answers in tow.’ (340)
Fatalism Turn
WIlderson’s hard ontological descriptions make fatalism inevitable - [if they win their
ontological arguments, there is no reason why any ontic action could ever reverse it]
Bâ (teaches film at Portsmouth University (UK). He researches ‘race’, the ‘postcolonial’, diaspora, the transnational
and film ‘genre’, African and Caribbean cinemas and film festivals) 11
(Saër Maty, The US Decentred, Cultural Studies Review, volume 17 number 2 September 2011)
In chapter nine, ‘“Savage” Negrophobia’, he writes: The philosophical anxiety of Skins is all too aware that
through the Middle Passage, African culture became Black ‘style’ ... Blackness can be placed
and displaced with limitless frequency and across untold territories, by whoever so chooses.
Most important, there is nothing real Black people can do to either check or direct
this process ... Anyone can say ‘nigger’ because anyone can be a ‘nigger’. (235)7 Similarly, in
chapter ten, ‘A Crisis in the Commons’, Wilderson addresses the issue of ‘Black time’. Black is
irredeemable, he argues, because, at no time in history had it been deemed, or deemed through the
right historical moment and place. In other words, the black moment and place are not right because
they are ‘the ship hold of the Middle Passage’: ‘the most coherent temporality ever deemed as Black time’
but also ‘the “moment” of no time at all on the map of no place at all’. (279) Not only does Pinho’s
more mature analysis expose this point as preposterous (see below), I also wonder what
Wilderson makes of the countless historians’ and sociologists’ works on slave
ships, shipboard insurrections and/during the Middle Passage,8 or of groundbreaking
jazz‐ studies books on cross‐ cultural dialogue like The Other Side of Nowhere (2004).
Nowhere has another side, but once Wilderson theorises blacks as socially and
ontologically dead while dismissing jazz as ‘belonging nowhere and to no one, simply there for the
taking’, (225) there seems to be no way back. It is therefore hardly surprising that
Wilderson ducks the need to provide a solution or alternative to both his sustained
bashing of blacks and anti‐ Blackness.9 Last but not least, Red, White and Black ends like a
badly plugged announcement of a bad Hollywood film’s badly planned sequel: ‘How does one
deconstruct life? Who would benefit from such an undertaking? The coffle approaches with its
answers in tow.’ (340)
Turns the case – greatest comparative threat
Miah quoting West in 94
(Malik Miah, Cornel West's Race Matters, May-June, http://www.solidarity-us.org/node/3079)
In the chapter, “Nihilism in Black America,” West observes “The liberal/conservative
discussion
conceals the most basic issue now facing Black America: the nihilistic threat to its very
existence. This threat is not simply a matter of relative economic deprivation and political
powerlessness -- though economic well-being and political clout are requisites for
meaningful Black progress. It is primarily a question of speaking to the profound sense of
psychological depression, personal worthlessness, and social despair so widespread in Black America.” (1213) “Nihilism,” he continues, “is to be understood here not as a philosophic doctrine ... it is, far more, the
lived experience of coping with a life of horrifying meaningless, hopelessness, and (most important)
lovelessness.” (14) “Nihilism is not new in Black America. . . . In fact,” West explains,” the major enemy
of Black survival in America has been and is neither oppression nor exploitation but rather the
nihilistic Threat -- that is, loss of hope and absence of meaning. For as long as hope remains
and meaning is preserved, the possibility of overcoming oppression stays alive. The
self-fulfilling prophecy of the nihilistic threat is that without hope there can be no future,
that without meaning there can be no struggle.” (14-15)
Fatalism Turn – Method Link**
Inherent in their methodology
Robinson (PhD Political Theory, University of Nottingham) 05
(Theory and Event, Andrew, 8:1, The Political Theory of Constitutive Lack: A Critique).
More precisely, I would maintain that "constitutive lack" is an instance of a Barthesian myth. It is, after all,
the function of myth to do exactly what this concept does: to assert the empty facticity of a particular
ideological schema while rejecting any need to argue for its assumptions. 'Myth does not deny things; on the
contrary, its function is to talk about them; simply, it purifies them, it makes them innocent, it gives them a
natural and eternal justification, it is a clarity which is not that of an explanation but that of a statement of
fact'. This is precisely the status of "constitutive lack": a supposed fact which is supposed to operate above
and beyond explanation, on an ontological level instantly accessible to those with the courage to accept it.
Myths operate to construct euphoric enjoyment for those who use them, but their operation is in conflict with
the social context with which they interact. This is because their operation is connotative: they are "received"
rather than "read" and open only to a "readerly" and not a "writerly" interpretation. A myth is a second-order
signification attached to an already-constructed denotative sign, and the ideological message projected into
this sign is constructed outside the context of the signified. A myth is therefore, in Alfred Korzybski's sense,
intensional: its meaning derives from a prior linguistic schema, not from interaction with the world in its
complexity. Furthermore, myths have a repressive social function, carrying in Barthes's words an 'order not
to think'. They are necessarily projected onto or imposed on actual people and events, under the cover of this
order. The "triumph of literature" in the Dominici trial consists precisely in this projection of an externallyconstructed mythical schema as a way of avoiding engagement with something one does not understand.
Lacanian theory, like Barthesian myths, involves a prior idea of a structural matrix which is not
open to change in the light of the instances to which it is applied. Žižek's writes of a 'preontological dimension which precedes and eludes the construction of reality'42, while Laclau
suggests there is a formal structure of any chain of equivalences which necessitates the logic of hegemony43.
Specific analyses are referred back to this underlying structure as its necessary expressions,
without apparently being able to alter it; for instance, 'those who triggered the process of
democratization in eastern Europe... are not those who today enjoy its fruits, not because of a simple
usurpation... but because of a deeper structural logic'44. In most instances, the mythical operation of
the idea of "constitutive lack" is implicit, revealed only by a rhetoric of denunciation. For instance,
Mouffe accuses liberalism of an 'incapacity... to grasp... the irreducible character of antagonism'45, while
Žižek claims that a 'dimension' is 'lost' in Butler's work because of her failure to conceive of "trouble" as
constitutive of "gender"46. This language of "denial" which is invoked to silence critics is a clear example
of Barthes's "order not to think": one is not to think about the idea of "constitutive lack", one is
simply to "accept" it, under pain of invalidation. If someone else disagrees, s/he can
simply be told that there is something crucial missing from her/his theory. Indeed, critics are
as likely to be accused of being "dangerous" as to be accused of being wrong.