There is no justification for the privatization of prisons

Author: Dmytro Tupchiienko, Institute of Criminology, University of Cambridge (UK)

Why then ’tis none to you; for there is nothing either good or bad, but thinking makes it so. To me it is a prison. Shakespeare, Hamlet, Act 2, scene 2

Introduction

My motivations for writing a thesis on this topic are that the prison system in my Eastern European country is in dire need of reform. There is thus a quest for the most effective prison management mechanism, of which prison privatization might be one solution.

In this paper, author analyse the history of penal services, highlight reasons used by proponents and opponents of prison privatization, highlight reasons used by proponents and opponents of prison privatization and finally offer my own opinion on the subject.

Prison privatization: historical overview

Private prisons are an old phenomenon – prison privatization is not a new concept. The punishment of offenders was never a monopolistic function of the state (Chan, 1994), although the introduction of state-owned prisons goes back at least to Solon’s penal reforms in ancient Greece ((D’Amico, D.J. (2010) The prison in economics: private and public incarceration in Ancient Greece. Public Choice, 145(3-4), 461-482. Retrieved July 2012 from http://www.danieljdamico.com/CV%20and%20Publications_files/prison%20public%20choice%20proof.pdf))and Justinian’s Digest in Ancient Rome ((Robinson, O.F. (1996) The Criminal Law of Ancient Rome. Baltimore: Johns Hopkins)). There is no single definition of privatizing public-funded services ((Nightingale D.S. & Pindus, N.M. (1997) Privatization of Public Social Services. A Background Paper. Washington, D.C.: Urban Institute. Retrieved July 2012 from http://www.urban.org/url.cfm?ID=407023)).

The modern rationale for the privatization of publicly-funded services and their implementation strategies, including novel forms of private sector involvement in public service delivery as part of the New Liberal philosophy only emerged in 1980s onwards as the Corrections Corporation of America was granted prison management contract in Tennessee in 1984 ((Rapoza, P.G. (2006) The privatization of prisons and the issue of security: is the private sector up to the task? In: The implementation of prison sentences and aspects of security, Proceedings of the Colloquium of the IPPF, Budapest, Hungary 16-19 February 2006, Nijmegen, Wolf Legal Publishers, 2006. Retrieved July 2012 from http://fondationinternationalepenaleetpenitentiaire.org/Site/documents/popowo/Budapest/14.%20Budapest%20-%20Phillip%20Rapoza.pdf)). Governmental decisions to privatize penal services have been motivated by several factors ((Hatry, H.P. & Durman, E. (1985). Issues in Competitive Contracting for Social Services. Falls Church, VA, National Institute of Governmental Purchasing, Inc.))such as governments’ desire to:

  • challenge poor performance of the public sector in prison management;
  • introduce more flexibility into prison management (e.g., for personnel, operations, innovations) and to give more power to service intermediaries; and
  • reduce prison management costs.

In the US, the modern era of contracting out penal services to private providers – beginning with inmate transportation, food preparation, medical services, and vocational training, and then moving towards the complete operation and management of entire prison complexes – is seen to be a result of prison overcrowding ((Cheung, A. (2004) Prison Privatization and the Use of Incarceration. Washington, D.C.: The Sentencing Project.  Retrieved July 2012 from http://www.sentencingproject.org/doc/publications/inc_prisonprivatization.pdf)). In 2007, for example, there were 264 private correctional facilities in the US, with a prison population totalling 99,000 convicts ((Schmalleger, F., & Smykla, J. (2007). Corrections in the 21st Century. New York: McGraw-Hill)) ((Thomas, C.W. (2001) Number of Private Facilities by Geographical Location. Florida: Private Corrections Project. Retrieved July 2012 from www.apcto.org/logos/Lawchap.pdf)).

In the UK the rise of private prisons is attributed to the Thatcher government in the 1980s, as part of a wide privatization project which included public assets such as British Rail ((Marsh, D. (1991), Privatization Under Mrs. Thatcher: A Review Of The Literature. Public Administration, 69: 459–480. Retrieved July 2012 from http://onlinelibrary.wiley.com/doi/10.1111/j.1467-9299.1991.tb00915.x/pdf)), also connected to rising prison population, overcrowding issues, and deteriorated prison conditions ((Ludlow A. (2012) Does Public Procurement Deliver? A Prison Privatisation Case Study (Ph.D. thesis, forthcoming, unpublished).)). Perhaps the most striking example is the privatisation of Birmingham prison in 2011 – the first UK operational public sector prison to be transferred into private management, which according to IMB report (2011) took too long and hit staff morale.

In Australia, the first state to introduce private prisons, after much debate, was Queensland ((Moyle P. (2000) Profiting from Punishment: Private Prisons in Australia : Reform or Regression Annandale: Pluto Press)) ((Harding, R. W. (1992) Private Prisons in Australia. Australian Institute Of Criminology, Trends & Issues in Crime And Criminal Justice. No.36. Canberra: Australian Institute of Criminology 1992 Retrieved July 2012 from http://www.aic.gov.au/documents/3/F/1/%7B3F18DF23-E9A6-4183-A861-68C9CF84FE27%7Dti36.pdf)). This was followed by New South Wales ((Roth L. 2004 Privatisation of Prisons. Background Paper No 3/04. NSW Parliamentary Library Research Service. Retrieved July 2012 from  http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/ED4BA0B9D18C2546CA256EF9001B3ADA/$File/bg03-04.pdf)). In 2004, there were seven private prisons in five states ((Alizzi J. Private Prisons in Australia: Our 20 year trial (2012). Retrieved July 2012 from    http://deathsincustody.org.au/private-prisons-australia-our-20-year-trial)).

Clusters of reasons for and against

A comprehensive analysis of the cluster of reasons, both for and against prison privatization, has been carried out by several criminological researchers ((Miller D.W. (2010) The Drain of Public Prison Systems and the Role of Privatization: An Analysis of State Correctional Systems. Melbourne: ProQuest Discovery Guides. Retrieved July 2012 from http://www.csa.com/discoveryguides/prisons/review.pdf)).

Supporters’ arguments

The following major advantages for contracting for penal services with private organizations ((Nightingale D.S. & Pindus, N.M. (1997) Privatization of Public Social Services. A Background Paper. Washington, D.C.: Urban Institute. Retrieved July 2012 from http://www.urban.org/url.cfm?ID=407023))are:

  • Need for special skills or specially-trained staff
  • Need to challenge demands exceeding current capacity of government
  • Need to reduce government spending on penal system
  • Need to improve the quality of the service provided by the penal system
  • Ideological neoliberal reasons (i.e. less government is better] ((Allen, et al. (1989) The Private Sector in State Service Delivery. Washington, D.C. The Urban Institute Press)).

Cost effectiveness

The main justifications for privatization are the arguments by supporters of contracting out that there are reduced costs in running the system, resulting from prison efficiency improvement; that private companies operate more efficiently than public sector – sometimes by 20% to 30% ((Carson S.A. (1999) Justifying Global Privatization: Economics, Public Policy, and Education. Proceedings of Academy of Business and Administrative Sciences, July 12-14, 1999, Barcelona, Spain. Retrieved July 2012 from http://www.sba.muohio.edu/abas/1999/carsonsc.pdf)) ((Moore A.T. (1998) Private Prisons: Quality Corrections at a Lower Cost. Reason Public Policy Institute. Policy Study No . 240. Retrieved July 2012 from http://www.hawaii.edu/hivandaids/Private_Prisons__Quality_Corrections_at_a_Lower_Cost.pdf)); and that private prisons are cost-saving (MTC Institute, 2012). Gaes ((Gaes, G. G. (2008) Cost, Performance Studies Look at Prison Privatization.  NIJ Journal No. 259, March 2008. Retrieved July 2012 from http://www.nij.gov/journals/259/prison-privatization.htm))and Segal ((Segal G. (2008) Comparing the Performance of Private and Public Prisons. Los Angeles: Reason Foundation. Retrieved July 2012 from http://reason.org/news/show/1002999.html))provided a comprehensive analysis of the criteria used by policymakers when making cost ((Blumstein, J.F. & Cohen, M.A. (2003) Corrections Budgets in States Without Private Prisons Grow Much Faster. Centerville: APCTO. Retrieved July 2012 from http://www.apcto.org/logos/Summary.pdf))and quality ((Segal G. (2005). Comparing Public and Private Prisons on Quality. Los Angeles: Reason Foundation. Retrieved July 2012 from  http://www.apcto.org/research/Segal-Commission-on-PrisonAbuse.pdf))evaluations.

Performance standard

There are a number of reports which summarize the design of performance indicators across the justice sector in the UK ((Smith, B (2007) What Gets Measured. London: Serco Institute. Retrieved July 2012 from  http://www.serco.com/Images/What%20Gets%20Measured_tcm3-21241.pdf)) ((Stevens, M. and Rose, N. (2007) Effectiveness of Operational Contracts in PFI. London: KPMG LLP. Retrieved July 2012 from  http://www.kpmg.co.uk/pubs/305432_PFI.pdf))and in the US ((McDonald D; Patten C. (2004) Governments’ Management of Private Prisons. Washington, D.C.:  National Institute of Justice. Retrieved July 2012 from https://www.ncjrs.gov/pdffiles1/nij/grants/203968.pdf)).

Better prison conditions

It has been argued by the proponents that private prisons provide better staff-to-prisoner ratios [thus reducing overcrowding], ((Gaes, G. G. (1994). Prison Crowding Research Reexamined. The Prison Journal, 74(3).))better working conditions for personnel [thus reducing overtime] ((Camp, S. D. (1994). Assessing the Effects of Organizational Commitment and Job Satisfaction on Turnover: An Event History Approach. The Prison Journal, 74(3).  Washington, D.C.: Federal Bureau of Prisons Office of Research and Evaluation. Retrieved July 2012 from http://www.bop.gov/news/research_projects/published_reports/cond_envir/oreprcamp_pj1.pdf)), and better health conditions among inmates ((Anno, B.J. (ed.) (2001) Correctional Health Care: Guidelines for the Management of an Adequate Delivery System. Washington, DC . Retrieved July 2012 from http://static.nicic.gov/Library/017521.pdf)) ((Ax, R. & Fagan, T. (eds.) (2010) Correctional Mental Health: From Theory to Best Practice. Los Angeles: SAGE Publications)), as well as reducing recidivism and re-offending rates ((Austin, J. and Coventry G. (2001) Emerging Issues on Privatized Prisons. Washington, D.C.: U.S. Department of Justice, Bureau of Justice Assistance, National Council on Crime and Delinquency. Retrieved July 2012 from www.ncjrs.gov/pdffiles1/bja/181249.pdf)) ((Lanza-Kaduce, L. et al. (1999) A comparative recidivism analysis of releases from private and public prisons. Crime and Delinquency 45:28–47. Retrieved July 2012 from http://cad.sagepub.com/content/45/1/28.full.pdf+html)) ((Farabee, David and Kevin Knight (2002) A comparison of public and private prisons in Florida: During- and postprison performance indicators. Los Angeles: Query Research)).

Opponents’ arguments

Nightingale and Pindus ((Nightingale D.S. & Pindus, N.M. (1997) Privatization of Public Social Services. A Background Paper. Washington, D.C.: Urban Institute. Retrieved July 2012 from http://www.urban.org/url.cfm?ID=407023))summarize the major arguments against prison privatization, which are related to quality aspects of service delivery and the impact of the reduction of public sector jobs in the prison service.

Performance concerns

Crewe, Liebling and Hulley’s ((Hulley, S., Liebling, A. and Crewe, B. (in press). ‘Respect in prisons: Prisoners’ experiences of respect’. Criminology and Criminal Justice)) recent study compares public and private prisons and suggests that there is not a clear distinction between the two types of prison in terms of performance – the picture is more complex. However, more staff does not reduce overcrowding. There is clear data to show that private prisons in UK have lower staff to prisoner ratios ((Ludlow A. (2012) Does Public Procurement Deliver? A Prison Privatisation Case Study (Ph.D. thesis, forthcoming, unpublished).)).

Ideological constraints on prison privatization

There has been much debate about the government’s right to punish and to administer justice ((Locke, John. Two Treatises of Government. Ch.2, sec.7. (1988) Ed. Peter Laslett. Cambridge: Cambridge University Press)) ((Hobbes, Thomas. Leviathan. Chapter XXVIII. Eds.  G.A.J. Rogers and Karl Schuhmann. Bristol: Thoemmes, 2003)) ((Beccaria, C. Of crimes and punishments (1996). Translated by Jane Grigson; introduction by Marvin Wolfgang;  foreword by Mario Cuomo. New York: Marsilio Publishers.))as part of a social contract between the governors and the governed ((Rousseau, Jean-Jacques (1968). The social contract; translated [from the French] and introduced by Maurice Cranston. Harmondsworth: Penguin)).

The retributive theories of punishment which dominate the modern concept of criminal justice say that punishment is inflicted for public wrongs in the name of the people by the government.

It is morally wrong to delegate state responsibilities to private entity as part of a neo-liberal political agenda ((Alexander E. et al. (2008) Capitalist Punishment: Prison Privatization and Human Rights. Atlanta, Clarity Press)). It decreases the citizen’s participation in government by the very fact that it diminishes public responsibility for allocating public funds and monitoring their use, and it threatens the government’s fiscal accountability ((Nichols R (2010). The Pros and Cons of Privatizing Government Functions Outsourcing may seem like a perfect solution for deficit-plagued governments, but the morning after can bring some unpleasant surprises. Washington, D.C.: Governing Magazine. Retrieved July 2012 from http://www.governing.com/topics/mgmt/pros-cons-privatizing-government-functions.html)).

Human Rights concerns on prison privatization

The issue here is that the public is delegating to private corporations the social task of depriving other human beings of their liberty. Inmates are usually punished for breaking prison rules, by a denial of parole, reclassification, and extension of their prison term or solitary confinement. This represents an additional deprivation of liberty.

Cost-shifting, not cost-saving

The core issue of whether penal services should be privatized for cost-saving reasons is best described by Ludwig von Mises ((Mises, Ludwig von (1945). Bureaucracy. Glasgow [etc.] W. Hodge & Co., Ltd.)): “In public administration, there is no connection between revenue and expenditure … there is no market price for achievements”. Segal and Moore ((Segal G. and Moore A.T. (2002) Weighing the Watchmen: Evaluating the Costs and Benefits of Outsourcing Correctional Services. Reason Public Policy Institute, Policy Study 290. Los Angeles: Reason Foundation. Retrieved July 2012 from http://www.prisonpolicy.org/scans/reason/50b944ab1f7d1cb15d8943c0c334df56.pdf)), evaluating the financial aspects of outsourcing penal services, warn about over-reliance upon cost comparison data, and say that cost comparisons “tend to be static in nature”.

Cunningham ((Cunningham D. (1999) Projected FY 2000 Cost of DOC Operated Medium Security Beds Compared to Private Prison Contracts,” Las Vegas : 4th Annual Privatizing Correctional Facilities Conference, September 24, 1999)) has concluded that private prisons actually cost more than public prisons. Cost-saving reports from privatizing prisons may be misleading, because they are artificially inflated by sending less expensive inmates to privately-run prisons which refuse to accept those inmates who cost the most ((Pranis K (2005) Cost-Saving or Cost-Shifting—The Fiscal Impact of Prison Privatization in Arizona. Florida: Private Corrections Institute. Retrieved July 2012 from http://www.prisonpolicy.org/scans/AZ_PP_Rpt_v4.pdf)) ((Austin, J. and Coventry G. (2001) Emerging Issues on Privatized Prisons. Washington, D.C.: U.S. Department of Justice, Bureau of Justice Assistance, National Council on Crime and Delinquency. Retrieved July 2012 from www.ncjrs.gov/pdffiles1/bja/181249.pdf)).

Crime shouldn’t pay

The private prison industry operates with the aim of profit maximization. The profit motivation of private prison companies therefore creates a conflict between their interests in profit and the interests of public policy in reducing prison overcrowding.

Complaints about healthcare in private prisons

Private service providers have been the targets of numerous lawsuits concerning inadequate healthcare for inmates ((Altice, F. L. et al. (2005). Correlates of HIV infection among incarcerated women: implications for improving detection of HIV infection. The Journal of Urban Health, Volume 82, Number 2 (2005), 312-326 . Retrieved July 2012 from http://www.springerlink.com/content/y008h0040w183110/fulltext.pdf)).

No evidence of reduced recidivism rates

There are “no significant differences in recidivism rates between private and public prison inmates, as well as no empirical justification for the policy argument that private prisons reduce recidivism more than public prisons” ((Bales W. et al. (2005) Recidivism Of Public And Private State Prison Inmates In Florida. Criminology & Public Policy, Volume 4, Issue 1, Pages 57–82, February 2005. Retrieved July 2012 from http://www.hawaii.edu/hivandaids/Recidivism_of_Public_and_Private_State_Prison_Inmates_In_Florida.pdf)). Spivak and Sharp ((Spivak, A.L. and Sharp S.F. (2008). Inmate Recidivism As a Measure of Private Prison Performance. Crime & Delinquency Vol. 54 (3) pp.482–508. Retrieved July 2012 from http://www.ncpc.org/resources/files/pdf/prisons/private-prisons-and-recidivism-rates.pdf))go even further and substantiate a claim that the recidivism rate of inmates of private prisons is higher.

Union Opposition

The strongest opposition to prison privatization comes from their unions of public employees, as there is a serious fear that privatization will reduce the number of jobs in the public sector (Osborne and Gaebler, 1992). However, public employees are not always worse off in terms of employment, wages, morale or job satisfaction, and there are several examples of negotiated union arrangements or legislation for transferring public employees into private employment or into other public agencies, including the TUPE Directive which has been described as ineffective at really protecting staff ((Ludlow A. (2012) Does Public Procurement Deliver? A Prison Privatisation Case Study (Ph.D. thesis, forthcoming, unpublished).)).

Conclusions

Prison privatization is neither good nor bad, neither more (cost) effective nor less (cost) effective than public service delivery. Its performance and its effectiveness depend on the implementation; a public prison service is, for example, more effective in policy and management issues, regulation development, ensuring prevention of discrimination, providing continuity and stability of penal services, while private correctional services providers are better at “performing day-to-day routine tasks, bringing innovations, adapting to rapid change, abandoning unsuccessful activities, and performing complex or technical tasks” ((Osborne D & Gaebler T (1992) Reinventing Government. Boston, MA: Addison-Wesley)).

Unless we want complete governmental control of all public services in the Soviet style, privatization of correctional services is inevitable, and the main issue of public concern should be rather the scope and extent of privatization, as well as accountability and monitoring mechanisms. The “real issues are thus the power to punish, the nature of the penal reform process, the relationship between the state and civil society regarding punishment and penal reform, and the role of political economy in both” ((Chan J. (1994) The privatisation of punishment: a review of the key issues. In: Moyle P. (ed.) (1994) Private Prisons and Police: Recent Australian Trends. Leichhardt: Pluto Press)).

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