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FEBRUARY 1990
PRIVATIZATION OF PRISONS:
FAD OR FUTURE
By
Lt. David K. Burright
Linn County Sheriff's Office
Albany, OR
Very few people would dispute that this Nation's prison
system is in serious trouble. Corrections administrators are
faced with grossly over-crowded conditions, shrinking revenues,
and increased competition for operating capital. These problems
are combined with soaring crime rates, a public cry for more jail
sentences and longer incarcerations of criminals, and a Federal
judiciary which all too often imposes sanctions and restrictions
in an effort to force needed change.
It's no wonder that in response to these pressures, public
officials are grasping for ideas and solutions to the prison
problem. One major idea continually being proposed is the
private contracting and operation (privatization) of adult
correctional facilities.
The concept of privatization fuels a very controversial and
heated debate. Most arguments center on whether private
contractors can truly provide a better service at a lower cost
than public practitioners while still not sacrificing quality,
i.e., physical security, inmate programs, and support. An even
more difficult issue involved in this controversy is whether
corrections should either philosophically, ethically, or morally
be turned over to private enterprise. However, questions still
remain. Is privatization a panacea for the ills of corrections
in the United States? Is it a fad or is it the future?
BACKGROUND
The concept of private operations of correctional
facilities is not a new one. After the Civil War, many States
entered into contracts with private businesses to operate State
prisons. The inmates, however, were used virtually as slaves,
and the practice degenerated to ``...a well documented tale of
inmate abuse and political corruption.'' (1) By the late 1800's,
the practice of complete operation of prisons by private vendors
had been abolished and control was taken by the States and
counties.
Since then, public opinion and pressure have vacillated
regarding the treatment of lawbreakers. At times, public opinion
has been one of ``reform,'' with the idea that criminals should
be treated and not necessarily incarcerated. This was evident in
the 1960s and early 1970s when the building of new prisons and
jails was very unpopular and thought unnecessary. Many
practitioners believe this is the one reason that there is such a
shortage of jail/prison beds today.
In the meantime, private businesses recognized a potential
market and began offering specialty programs and began
contracting for medical and food service and housing for
low-security juveniles and illegal aliens being held for the
Immigration and Naturalization Service (INS). However, it was
not until these private vendors began pressing for the
opportunity to take over the complete management and operation of
full-scale adult prisons and jails that opposition began to
mount. Even so, by 1987, three States had adopted legislation
authorizing the private operation of the State facilities, and
a dozen more were actively considering it. (2) Today, there are
64 private companies in this business, and several States and
counties have prisons being operated by these companies. (3)
ARGUMENTS--PRO
BETTER PERFORMANCE
The proponents of the private operation of prisons and jails
offer a variety of arguments to support their position. Many
believe the government has not done a good job of management.
``Costs have soared, prisoners are coming out worse off than when
they went in, and while they are in they are kept in conditions
that shock the conscience, if not the stomach.'' (4) Because the
work would be performed under a service contract, proponents say
that vendors can be forced to perform or face termination of the
contract.
COST SAVINGS
Private vendors believe they can operate the facilities for
a much lower cost, saving 10-25% of the Nation's corrections
budget. These savings are possible because the vendors are
unencumbered by politics, bureaucracy, and civil service that
influence public operations.
An additional incentive to economize is the competition from
other private vendors. Others claim that costs can be lowered by
reducing employee turnover through better training, recruiting
and supervision, and reduced use of overtime.
EFFICIENCY
Many private vendors employ administrators who are highly
experienced in corrections; in fact, a large number have served
in the public sector. (5) When facilities are transferred to the
private sector, the public employees on staff are offered the
opportunity to be hired by the private operators in most
instances, thereby assuring trained, qualified employees are
manning the prisons. A private business could also contract with
two adjoining States to house prisoners in a common facility,
resulting in increased efficiency for both the public and the
vendor.
REDUCED CIVIL LIABILITY
Some vendors have agreed to indemnify the government should
lawsuits be filed against the facility. As a means of further
reducing the government's potential for liability, these
operators consent through their contracts to run the facility in
accordance with American Correction Association (ACA) standards.
ARGUMENTS--CON
REDUCED COSTS OR SERVICE?
Opponents to privatization strongly question whether there
will be any real savings by contracting out the operation of
prisons and jails. (6) They argue that cost cutting can only be at
the expense of humane treatment or security measures. Since the
majority of operating costs center on personnel, especially in
maximum security facilities, any significant reductions would
have to be made in the daily costs of inmate care or in measures
that would jeopardize the security of the facility.
Even though vendors point to lower inmate costs per day of
the current privately run operations, opponents state that most
of the private experience is with short-term minimum security
facilities and special program operations (juvenile facilities,
INS lock-ups, halfway houses, etc.). Operating expenses for
these facilities are much less than for a maximum security prison
or jail, which requires additional staff, security measures, and
inmate programs.
Opponents also question whether the ``lower costs'' include
the full cost of contract administration and management. To
ensure the vendor is complying with all contractual obligations,
especially in a large multifacility operation, would require
governmental monitoring and administration resulting in an
additional level of bureaucracy. (7)
UNCONTROLLABLE FUTURE COSTS
Opponents fear that once private vendors take over facility
operations and the government dismantles its organizational
structure, it will significantly reduce the public's leverage on
contracts negotiated in future years. This reduced leverage and
lack of alternatives could result in huge future costs.
The public must also be prepared to reassume control of the
facilities on short notice should the contracting vendor be
unable to fulfill its contract. In this situation, unlike in the
public sector, the government would not have the option of simply
shutting down the operation, and the resultant problems and
costs of regaining control would be staggering.
LATERAL HIRING OF PERSONNEL
Corrections administrators fear that the private sector will
lure away the best, most experienced employees, making it even
more difficult to manage the facilities remaining under
government control. Unless carefully monitored, the private
vendor may also attempt to have low-security inmates assigned to
their facilities, thereby leaving the high-risk, higher cost
inmates to the government.
CIVIL LIABILITY
Opponents to privatization argue that the government cannot
contract away its civil liability as it relates to the proper
management and operation of corrections facilities, and this
position appears to be supported by the courts. (8) Also, the
mere fact that a contractor agrees to abide by ACA standards
does not guarantee that a civil rights complaint will not be
successfully litigated, as the courts have not recognized any set
standard to be followed in these cases. (9)
With regard to indemnification, although promising in
appearance, there has not yet been a court case to be able to
judge the practicality of this. In addition, opponents are
concerned as to if and how vendors will be insured. Will they be
able to financially survive in the face of a large settlement,
and if not, who will bail them out?
CONSTITUTIONAL/MORAL/ETHICAL ISSUES
Probably the most important of all arguments against
privatization deals with the question of whether the government
should delegate the authority for such a traditional and
important governmental function as the deprivation of freedom to
citizens (criminals). Opponents say that corrections centers on
issues at the very core of American government and that it has no
business being in the hands of private enterprise.
For instance, absent any special legislation or
deputization, private contractors have only the authority of a
private citizen to arrest, use force in defense of themselves or
others, and to carry firearms. They have no special police
powers or authority. (10) This has tremendous implications when
considering incarceration and the use of force to maintain
control and security.
Another important constitutional issue deals with decisions
affecting parole. The American Civil Liberties Union's position
on the issue is quite clear:
``...we do see civil liberties implications in the
situation where private entities or persons can
affect or impact the length or duration of con-
finement of a prisoner. Plainly it is in the
interest of private entrepreneurs to increase the
number of prisoners in facilities because they are
paid by the head ... any decision which impacts
these numbers must be made by government officials
with no ties to a private contractor. A concrete
example is in the disciplinary realm where jail or
prison officials are empowered to take away good
time or file adverse disciplinary reports which
will in turn affect parole release.'' (11)
CONCLUSION
The move toward the privatization of adult correctional
facilities in America is more than a passing fad. Private
enterprise is showing a willingness to commit millions of dollars
in an attempt to break into what it believes to be a very
lucrative market.
But, is it really the future? On this, the ``jury is still
out.'' Both sides present convincing arguments. Proponents tout
reduced costs and increased efficiency, while opponents ask if
the savings are real and question the basic legitimacy of
privatization. The problem is that neither side has been able to
conclusively prove its case.
The President's Commission on Privatization has recommended
that ``proposals to contract for the administration of entire
facilities at the federal, state, or local level ought to be
seriously considered.'' (12) Perhaps that's good advice, but the
issue will have to be ultimately decided by the people within
the affected jurisdictions and the courts.
FOOTNOTES
(1) John J. DiIulio, Jr., Private Prisons (Washington, DC:
Government Printing Office, National Institute of Justice,
1989), p. 3.
(2) Ibid., p. 1.
(3) Telephone interview with Dean Moser, National Sheriffs'
Association, Alexandria, VA, January 19, 1989.
(4) House of Representatives, 99th Congress, Hearings Before
the Subcommittee on Courts, Civil Liberties, and the
Administration of Justice of the Committee of the Judiciary,
Privatization of Corrections, quoting statement of Ira P.
Robbins, Concerning Privatization of Corrections (Washington,
DC: Government Printing Office, 1985), p. 6.
(5) Ibid., p. 38.
(6) Opposition or concern has been voiced by the American Bar
Association, American Civil Liberties Union, National Sheriff's
Association, and various labor organizations.
(7) Corrections Corporation of America (CCA) includes the cost
of 1 government monitor in the cost of their contracts.
(8) Medina v. O'Neill, 589 F.Supp. 1028 (S.D. Texas, 1984),
which held the INS responsible for constitutional violations
against 16 illegal aliens who were held at the direction of the
INS by a private contractor.
(9) Bell v. Wolfish, 441 U.S. 520, 995 S.Ct. 1861, 60 L.Ed.2d
447 (1979).
(10) Private Security Advisory Council, Scope of Legal
Authority of Private Security Personnel (Washington, DC:
Government Printing Office, Department of Justice, 1976), p. 1.
(11) Supra note 4, quoting ACLU Position on Privatization of
Prisons and Jails, p. 3.
(12) Report of the President's Commission on Privatization
(Washington, DC: Government Printing Office), p. 150.