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 Greece1and Justinian’s Digest in Ancient Rome2. There is no single definition of privatizing public-funded services3.

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 19844. Governmental decisions to privatize penal services have been motivated by several factors5such 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 overcrowding6. In 2007, for example, there were 264 private correctional facilities in the US, with a prison population totalling 99,000 convicts78.

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 Rail9, also connected to rising prison population, overcrowding issues, and deteriorated prison conditions10. 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 Queensland1112. This was followed by New South Wales13. In 2004, there were seven private prisons in five states14.

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 researchers15.

Supporters’ arguments

The following major advantages for contracting for penal services with private organizations16are:

  • 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]17.

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%1819; and that private prisons are cost-saving (MTC Institute, 2012). Gaes20and Segal21provided a comprehensive analysis of the criteria used by policymakers when making cost22and quality23evaluations.

Performance standard

There are a number of reports which summarize the design of performance indicators across the justice sector in the UK2425and in the US26.

Better prison conditions

It has been argued by the proponents that private prisons provide better staff-to-prisoner ratios [thus reducing overcrowding],27better working conditions for personnel [thus reducing overtime]28, and better health conditions among inmates2930, as well as reducing recidivism and re-offending rates313233.

Opponents’ arguments

Nightingale and Pindus34summarize 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’s35 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 ratios36.

Ideological constraints on prison privatization

There has been much debate about the government’s right to punish and to administer justice373839as part of a social contract between the governors and the governed40.

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 agenda41. 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 accountability42.

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 Mises43: “In public administration, there is no connection between revenue and expenditure … there is no market price for achievements”. Segal and Moore44, 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”.

Cunningham45 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 most4647.

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 inmates48.

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”49. Spivak and Sharp50go 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 staff51.

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”52.

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”53.

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