Privatized Prisons and the “Tough on Crime” Penology

by Tim Hambourger

Rising crime rates fuelled public demand for prisons as and for punishment. The incapacitation or ‘protection of the public’ function was an easier administrative task to ‘hand over’ to private companies and their employees than the ‘treatment and training’ of offenders. Longer sentences, mandatory minimum sentences, reduced parole eligibility, and a declining faith in rehabilitation were all part of a reconceptualization of the imprisonment task.
    Adrian L. James, A. Keith Bottomley, Alison Liebling, Emma Clare.

From 1980 to 2000, the total local, state, and federal prison and jail population grew by 300% from 500,000 to 1.9 million (Chang, 2002: 45). Evidence suggests that this surge is in great part due to “increases in the unemployment rate, poverty, income inequality, racial conflict, and political conservatism … independent of the crime rate” (Chang, 2002: 47). If, in this way, we view the rampant prison over-crowdedness of the 1980’s, which itself was a main motivating factor in the move towards private prisons, as (in part) a by-product of a “tough on crime” ideology which became widespread at the time, then I think the debate over prison privatization can be treated as an extension of the debate over how we as a society should view crime. This is not how the debate over private prisons has often been viewed. In academic literature since the mid 80’s, one normally sees the terms of the debate limited to a cost comparison of public and private prisons, or perhaps also a comparison of the “quality of service” provided by private prison corporations. Implicit in these arguments is the premise that if private prisons can be shown to be more cost effective and provide better services, or if they can be shown to be more expensive or provide cost savings at the price of major reductions in quality, then the debate will be essentially settled in favor of privatizing prisons, or respectively in favor of not privatizing prisons. While I will rely on these sorts of cost-comparison studies in this paper, my goal is to transcend mere cost comparisons or quality comparisons. As I see it, there can be no stronger argument against privatizing prisons than that the entire movement relies on a “tough on crime” philosophy which is simply flawed.

Facts and Studies

As of 2001, less than 7% of the U.S. prison and jail population were held in private facility (Austin, 2001: 6). As of 2002, 11% of all federal prisoners and 6% of all state prisoners were held in a private facility (Chang, 2002: 50). Furthermore, private prison operations have remained most common in the south, followed by the west (Chang, 2002: 50). Finally, one study showed that while 19.8% of all public prisons in 1995 were maximum security, only 4.6% of private prisons as of the end of 1997 were maximum security (Austin, 2001: 41). So far, private prison corporations have not chosen to operate high security facilities to a large extent. Despite these limitations on the scope of privately operated prison, the number of prisoners in private institutions has increased from 3100 in 1987 to 132,000 at the end of 1998 and 142,000 as of 2002 (Chang, 2002: 50; Austin, 2001: 3). That gives an average annual increase of somewhere between 299% and 320% (depending on exactly what time of the year the data is from).

For a concise overview of a number of cost studies since the mid 80’s, see chapter 3 of the 2001 research report “Emerging Issues on Privatized Prisons” by James Austin and Garry Coventry. Many of these studies had serious methodological flaws, such as not controlling for the difference in inmate characteristics (as already stated above, private prisoners are disproportionately medium or low security, so one might expect that this would lead the data to overestimate the savings of private prisons) or estimating costs. Still, most studies reported that the privately operated institutions made small savings over public prisons (Austin, 2001: 22 – 28).

Similarly, Austin’s report provides a long list of studies comparing the quality of life in public and private prisons, most of which reveal a slight advantage for the private prisons (Austin, 2001: 29 – 33). In a famous 1992 study of three New Mexico women’s prisons (one state, one federal, and one private) by the criminologist Charles Logan, while the private prison outperformed the state prison overall in terms of quality, the state prison out-performed both the federal and private prisons in a collection of statistics associated with the “Welfare model” for prisons (these statistics were termed “Activity, Conditions, and Care”) (James, 1997: 28). In the study presented in chapter 4 of “Emerging Issues on Privatized Prisons,” which compared the data collected from a 1995 census of state and federal prisons made by the Bureau of Justice Statistics with the conditions in a sample of 65 private prisons in 1997, the only two major differences that appeared between the public and private prisons was the number of staff (the private prisons had only 28 per 100 inmates compared with 32 per 100 inmates at public prisons) and the rate of incidents of assault. At the private prisons, there were 35.1 assaults on inmates per 1000 prisoners during the year 1997. At the public prisons, there were only 25.4 assaults on inmates per 1000 prisoners in the year from July 1, 1994 to June 30, 1995 (Austin, 2001: 39 – 51). Moreover, if one removes maximum security prisons from the data (again because very few private prisons are maximum security), the difference becomes even larger, with 33.5 assaults on inmates per 1000 prisoners at private prisons and only 20.2 assaults per 1000 prisoners at public prisons. Also, once we remove maximum security prisons, then public prisons also significantly perform better than private prisons in terms of rates of assaults on staff, with 8.2 per 1000 inmates compared with 12.2 per 1000 inmates (52 – 57).

An Analysis of the Data

So, to summarize, private prisons seems to offer a slight cost advantage over public prisons, but they also have fewer staff and higher rates of violence. This data suggests that private prisons have not revolutionized prison-operation models in the way that proponents of privatization predicted, and continue to assert, that they would. Austin and Coventry write “[O]ne could argue that the private sector has simply drawn upon the methods used by the public sector with respect to inmate management and staffing and only attempted to educe the costs associated with that model” (Austin, 2001: 38). But before I continue, I would like to add that it is extremely difficult to know what management model private prison directors are using, and it is of course possible that privatizers have made significant changes to public prison operation models. However, I think most of the cost savings can be explained quite easily, without any need to reference hypothetical changes in business model. There are two (what seem to me convincing) reasons why one would expect private prisons to offer lower costs than public prisons, even if they used a similar management strategy.

First, government-employees’ labor unions are typically quite strong, and the prison industry is no exception. On the other hand, private prison directors have a great deal of control over their labor, especially since most private prisons operate in the South and the West, where labor unions are generally weak (McDonald, 1990: 10).

Second, private prisons are not accountable to the general public in the same way that public prisons are. In most states, when a local government plans to make a large capital expenditure (like building a new prison) this requires voter approval. Private prisons are of course free to expend capital as they wish. This means that private companies can construct a new prison much more quickly than public prisons, and one would expect therefore that private prisons would save money (because the time spent waiting for voter approval instead of building the new facilities is expensive) (Press, 1990: 22).

Of course, if private prisons save money for essentially these two reasons alone (and the low level of savings by private prisons suggests that they might), then it seriously calls into question the value of privatizing prisons. A prison industry modeled around treating its staff poorly and superceding public opinion would be very dangerous. One would expect high levels of prisoner violence (which private prisons have) because of underpaid staff and lack of staff. One would also expect that private prisons would not be responsive to changes in public attitude towards crime, the importance of incarceration in our criminal justice, or how much money should be spent on prisons.

Public Accountability

As I alluded above, it is much harder for the public to hold private prisons accountable than public prisons. I will not treat in more detail the theoretical aspects of how this has happened, and what evidence one can see that it has indeed happened. This section is based largely on the theory of ‘capture’ presented by Richard Harding in his 1997 book Private Prisons and Public Accountability.

To start, we must compare the power structure of public prisons with that of private prisons. Public prisons (like most institutions placed under the executive branch of government) have a linear power structure. At the top are upper level government officials (say in the Justice Department when considering federal prisons, or in the relevant state agency when considering state prisons). Below them are prison directors, and at the bottom are the staff (such as guards and prison physicians) who have regular contact with the prisoners. This is obviously a simplified description, and there are many people who will not fit well into any of the three categories I have described. None the less, this simple model works well for this analysis.

In private prisons, the model is not linear. The power structure has a government side, this time consisting of upper level government officials with the regulators of private prisons below them, and a private side, consisting of prison directors and low-level staff. The relationship between low-level staff and prison directors are in many ways comparable between private and public prisons (with the notable exception already described above that in private prisons, labor is typically much weaker). Likewise, the relationship between upper-level government and regulators in the private system is essentially comparable to the relationship between upper-level government and prison directors in the public system. The only exception is that one might expect prison regulators to have a closer, less adversarial relationship to the government than directors of public prisons do (this expectation is actually quite off). In addition, there are many other relationships that can be compared, for example the strength of private prison lobbying versus public prison employee lobbying. But I will not treat these. Instead I will focus on the one relationship which is unique to the private model has no analogue in the public model: the relationship between regulator and prison director.

“Capture” refers to cases in which “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” (Grabosky and Braithwaite, 2986: 198; quoted from Harding, 1997: 33). Capture is a famous problem in all areas where the government regulates a private interest (Harding provides many examples from non-prison industries on pp. 34-37). But prison-industry capture still has some unique features. In most areas, regulators have much weaker “financial and human resources” than their regulatees. This is not the case in private prison regulation. This is a good sign. But, because there are relatively few private prisons, regulators can develop close ties with private prison directors. Regulators have frequent contact with the same directors, and this increases the likelihood of capture (see Black’s 1976 theory of capture and the Grabosky and Braithwaite already cited) (Harding, 1997: 47-8).

Disturbingly, in the US, the agencies responsible for contracting out prisons to private companies and appointing regulators are the same agencies that have been responsible for running prisons prior to privatization. These are the agencies that will have to accept political responsibility if regulators report that conditions in private prisons are poor. Clearly then, these state executive agencies have a vested interest in making private prisons look good, and yet these are also the agencies responsible for appointing regulators. (Harding, 1997: 48-9).

Harding identifies two models for regulation of private prisons found in the US. The first is the Texas model. In Texas, the state is not required by law to include a provision for an independent regulator when it contracts with a private prison company. Regulators have no statutorily required duties. Second, in Florida, the state is required by statute to include a provision for a regulator whenever it contracts with a private prison company. However, the statute does not specify a required salary, nor does it outline the duties of the regulator. As of 1997, regulators in Florida were paid only $50,000 a year, which is hardly enough to attract experienced officials (who after all could be working for a private prison company making a lot more money). In fact, as Harding points out, no US state has a statute specifying the duties of government prison regulators (Harding, 1997: 38-9).

In comparison, the UK has relatively strong statutes on regulation of private prisons. Each private prison has a ‘controller’ appointed by the Secretary of State and responsible to the Secretary of State. This controller investigates allegations against guards, so that misconduct by guards is actually a matter of “public administration” (Harding, 1997: 40). In the US, the only recourse for prisoners maltreated by guards is to sue or to hope that the private prison company will reprimand that guard. Furthermore, the controller hears all disciplinary charges against prisoners and has discretion over disciplinary action (Harding, 1997: 40). This is a major strength of the British system. Still, even in the UK, which has many fewer private prisoners than the US, controllers have had to devote most of their time to adjudication, putting other regulation second (Harding, 1997: 46). In the US, this system is simply not feasible, at least not without many more regulators than we currently have.

Finally, many have cited the American Correctional Association process of prison accreditation as a useful tool for holding prisons publicly accountable. Indeed, in many states, contracts specifically required that private prisons must achieve accreditation in a specified amount of time after receiving the contract. However, accreditation is plagued with a number of problems. The process does not require extensive contact with prisoners or physical examination of the prison facilities. Audits are always scheduled well in advance. Last, the ACA’s primary source of income is fees collected from the prisons it audits. Therefore, the ACA has some interest not to fail too many prisons, since it is dependent on them for funding (Harding, 1997: 63-64). These problems apply both to public and private prison accreditation, but none the less, it seems naďve to look to accreditation as the solution to the regulatory problems (specific to private prisons) discussed above.

The Moral Arguments

This section is based on the moral arguments presented by John DiIulio, Jr. in “The Duty to Govern: a Critical Perspective on the Private Management of Prisons and Jails” published in McDonald’s Private Prisons and the Public Interest (1990) and chapter 6 of Adrian L. James, A. Keith Bottomley, Alison Liebling, and Emma Clare’s Privatizing Prisons: Rhetoric and Reality (1997).

DiIulio’s argument focuses on the moral message which incarceration implies, and whether we can justly entrust private companies with delivering this message. He writes “In my judgment, to continue to be legitimate and morally significant, the authority to govern those behind bars, to deprive citizens of their liberty, to coerce (and even kill) them, must remain in the hands of government authorities. Regardless of which penological theory is in vogue, the message ‘Those who abuse liberty shall live without it’ is the philosophical brick and mortar of every correctional facility” (DiIulio, 1990: 173). Essentially, he believes that since running a prison naturally involves a level of discretion over which actions deserve punishment, and since the act of deciding when and how to punish should remain solely in the hands of the state, privatized prisons cannot act with the moral authority required of them (DiIulio, 1990: 172-7).

While I find this position interesting, I think it falls short on two accounts. First, I essentially disagree with his assertion that incarceration must bear a moral message. Yes, currently our language and thought on crime centers on the distribution of justice and/or retribution. But I certainly hope that we will reach the point where we realize it is not the duty of anyone, government or private citizen, to punish people for their private actions. Second, this argument ignores the profit-motive involved when private companies take over prisons. DiIulio’s argument does not distinguish between contracting out to a for-profit company and to a non-profit. I think one might arguably apply DiIulio’s theory if the Department of Justice ever decided to hand over control over federal prisons to a different executive agency. In this way, DiIulio is too broad and does not make some necessary distinctions.

James et al. base their moral analysis on the work of the political philosopher Beetham. Beetham focuses on a definition of legitimate power which rests on the consent of the governed, as illustrated by compliance with law. Picking up on this, James et al. seek to measure the legitimacy of private prisons by the level of prisoner compliance and happiness with the private prison regime. James et al. conclude that private prisons will have an interest in acting legitimately because prisoner compliance makes their job easier and their operation more efficient. They also cite Charles Logan (a major proponent of privatized prisons) in support of this view (James, 1997: 146-7). Logan argues that since “the people” originally delegated the authority to imprison people to the state, the people certainly have a right to then delegate this authority to private companies instead (James, 1997: 151-3). James et al. just add that this constitutional sort of legitimization at the macro level should go along with their prisoner-compliance view of legitimization at the micro level.

This view has several flaws. Logan’s constitutional argument does little more than assert that as a matter of constitutional principle, we have the right to privatize prisons if we choose. This does nothing to tell us if this is the right decision (right on an economic level, right on a public good level, and right on an ethical level). Moreover, as I discussed earlier, privatization is in large part attractive as a loop hole around public referenda. Thus, it is hard to justify privatization because of overwhelming public approval (and after all, if we are redefining the role of government, I would think that requires an extremely overwhelming amount of public support). Next, James’s notion of legitimization at the micro level is quite flawed. A totalitarian regime can often get a large amount of compliance. James, like Beetham, would argue that these regimes are not legitimate because they are presumably not based on “established rules, which are justified on the basis of shared beliefs, and to which express consent, demonstrated by actions, is given by the subordinate” (James, 1997: 145). But if that is required for legitimacy, then I find it very hard to see why prison regimes would not rather be totalitarian than legitimate. Certainly it is not sufficient to argue that they want prisoner compliance. Last, evidence of prisoner satisfaction with private regimes must be seen in light of the new capital and new facilities that privatization created. Given all the new capital that private corporations brought to the prison industry, prisoners would probably rank private prisons highly, even if private prisoners operators were significantly less concerned with prisoner welfare.

Conclusion

What I hope the previous section has shown is that we must construct a view of privatization which takes into account the role of profit motives and the possibility that the current “tough on crime” penology which is so popular today may some day change. Privatizing prisons creates a strong private interest in preserving the current penology. The current penology (as I argued at the outset) is in great part responsible for the exponential rise in prison populations which led to privatization and which continues to fuel the growth of the private prison industry. Surely private prison corporations will protest if the public does someday move towards a different view of crime. But how, a prospective proponent of privatization might ask, is that an argument against privatization? Public prison employees have also benefited greatly from this penology?

Yes, public prison employees have profited, and they would also protest. The answer to this criticism lies in my analysis of the public accountability of private prisons. Perhaps private prison lobbies are stronger than public prison lobbies, perhaps not. But what is certain is that privatizing prisons adds an extra degree of separation between the public and the prisons. Moreover, the regulator-director relationship in the private prison power structure is extremely suspect. Because there is a weak link in this power structure, it is likely that in a situation of major change in our view of crime and the criminal justice system, this power structure will break down and no longer be effective. Moreover, this is a problem innate in our method of privatization, and it does not seem likely that simply writing stronger, more explicit contracts will solve the problem.

Some have also argued that in fact, private prison companies are not dependent on a particular conception of crime. For there is still much more demand for prison space than there is supply of prison beds. Private prisons have more than enough prisoners to maintain their business right now. But private prisons would still profit more from having more prisoners, wouldn’t they? And what if we progress to a point where there are significantly fewer prisoners than there are now? This argument cannot answer these criticisms of mine.

We should not focus solely on the simple cost comparisons of privatized versus non-privatized prisons. Instead, we should view the debate over privatized prisons as a small part of the debate over the larger ethical questions of why we as a society feel the need to punish? Why does anyone, even the government, have a right to enforce the private moral law? If the punishment of crime is itself a moral statement, does that mean that criminal law must reflect private morality? As I see it, the law should be a reflection of a public morality, that is, a statement of what kind of society ought to be valued. This is fundamentally different from a private morality that asserts what kind of actions ought to be valued. These two kinds of moralities might in fact coincide (some utilitarians and perhaps most Kantians would probably think this), but I do not think they do. Applying this distinction, I think to imprison someone should not be a moral indictment of their actions, or punishment for their private moral offences. Instead, imprisonment ought to be merely one possible tool in order to preserve society in a manner consistent with the public morality. It is valuable to have a society in which people cannot freely kill others. Therefore imprisoning murderers is just one way of trying to maintain such a society. If this is the rationale for imprisoning individuals, then one can hardly justify the poor treatment of prisoners. Likewise, because I think addressing the socioeconomic inequalities that lead to much (if not most) of the crime in this country is a far more effective and humane way of dealing with crime than imprisonment, I would favor this approach to the one we currently have (some imprisonment would probably still be necessary however). I hope that one day, the penology I have just hinted at might become accepted, and I hope that one day the debate over privatization will be obsolete.

Sources Cited

Austin, James and Garry Coventry. “Emerging Issues on Privatized Prisons.” NCJ 181249. National Council on Crime and Delinquency. Bureau of Justice Assistance. Office of Justice Programs. U.S. Department of Justice. February 2001. Accesed through http://www.ncjrs.org/pdffiles1/bja/181249.pd. Accessed on April 10, 2004.

Chang, Tracy F. H. and Douglas E. Thompkins “Corporations Go to Prisons: the Expansion of Corporate Power in the Correctional Industry.” Labor Studies Journal, Vol. 27, no. 1. United Association for Labor Education. Morgantown, WV: West Virginia University Press, Spring 2002.

DiIulio, John J. Jr. “The Duty to Govern: a Critical Perspective on the Private Management of Prisons and Jails.” Private Prisons and the Public Interest. Ed. Douglas C. McDonald. New Brunswick, NJ: Rutgers University Press, 1990.

Harding, Richard W. Private Prisons and Public Accountability. New Brunswick, NJ: Transaction Publishers, 1997.

James, Adrian L. et al. Privatizing Prisons: Rhetoric and Reality. London: Sage Publications, 1997.

McDonald, Douglas C. “Introduction.” Private Prisons and the Public Interest. Ed. Douglas C. McDonald. New Brunswick, NJ: Rutgers University Press, 1990.

Press, Aric. “The Good, the Bad, and the Ugly: Private Prisons in the 1980s.” Private Prisons and the Public Interest. Ed. Douglas C. McDonald. New Brunswick, NJ: Rutgers University Press, 1990.

Other Sources

Hackett, Judith et al. “Issues in Contracting for the Private Operation of Prisons and Jails.” NCJ 104330. National Institute of Justice. U.S. Department of Justice. October 1987.

Logan, Charles H. Private Prisons: Cons and Pros. New York: Oxford University Press, 1990.

“Private Sector Involvement in Prison-Based Businesses: a National Assessment.” Criminal Justice Associates. National Institute of Justice. U.S. Department of Justice. November 1985.

Segal, Geoffrey F. and Adrian T. Moore. “Weighing the Watchmen: Evaluating the Costs and Benefits of Outsourcing of Correctional Services: Part II: Reviewing the Literature on Cost and Quality Comparisons.” Policy Study No. 290. Reason Public Policy Institute. 2002. Accessed through http://www.rppi.org/ps290.pdf. Accessed on April 10, 2004.

Sellers, Martin P. The History and Politics of Private Prisons: a Comparative Analysis. London: Associated University Press, 1993.

Note, this paper was originally written by Tim as the research assignment for his writing seminar, WRI111: Capitalism and Its Critics, taken in the spring of the 03-04 school year.

Tim may be reached via e-mail at thambour@princeton.edu