One of the frequently criticized aspects of American mass incarceration, privatized incarceration, is frequently considered worse, by definition, than public incarceration for both philosophicalethical reasons and because its for-profit structure creates a disincentive to invest in improving prison conditions. Relying on literature about the neoliberal state and on insights from public choice economics, this Article sets out to challenge the distinction between public and private incarceration, making two main arguments: piecemeal privatization of functions, utilities, and services within state prisons make them operate more like private facilities, and public actors respond to the cost/benefit pressures of the market just like private ones. This Article illustrates these arguments with several examples of correctional response to the conditions caused by the Great Recession, showing how public and private actors alike adopt a cost-minimizing, financially prudent approach, sometimes at the expense of prison conditions and inmate human rights. This Article ends by suggesting that, in a neoliberal capitalist environment, prohibitions and litigation alone cannot improve prison conditions, and that policymakers need to consider proper market incentives regulating both private and public prisons.
TABLE OF CONTENTS Introduction I. Mapping and Questioning the Traditional Arguments on Private Incarceration A. The Ethical Argument B. The Incentive Argument: For-Profit Incentives in the Neoliberal State Lead to Worsened Conditions C. The Efficiency Argument: Public Choice and Its Critics II. Questioning the Public/Private Divide A. Private Prisons' Share in Mass Incarceration B. Even Public Prisons Are Privatized III. Public Actors as Market Players A. Public Incarceration Conditions and the Ugly Pig Contest B. Profit-Seeking Aberrations and the Banality of Evil Conclusion They are telling this of Lord Beaverbrook and a visiting Yankee actress. In a game of hypothetical questions, Beaverbrook asked the lady: "Would you live with a stranger if he paid you one million pounds?" She said she would. "And if he paid you five pounds?" The irate lady fumed: "Five pounds. What do you think I am?" Beaverbrook replied: "We've already established that. Now we are trying to determine the degree." (1) INTRODUCTION
Anyone seeking a reason to rail against the American correctional system will find plenty of easy targets. With approximately 2.2 million people behind bars (2)--1 in 100 American citizens, (3) with more in certain states* 4--the American system is a frightening colossus of confinement and the world leader in incarceration rates. (5) Vastly more people are under some form of correctional control--probation or parole--raising the number of people supervised by the criminal justice system to 7.3 million. (6) Between 1980 and 2012, the total number of state and local prisoners in the United States rose from 501,886 to 2,228,400--a 344% increase (7)--while the U.S. population grew in the same time only from 226.5 million to 313 million--a 38% increase. (8) Shockingly, these numbers are not justified by the need to control crime. Rather, crime rates have declined since the 1980s. (9) Scholars studying the connection found little causal connection between the increase in incarceration and the decrease in crime, attributing only 10% of the decline, at most, to incarceration. (10) The conditions of incarceration, while diverse across the nation, are so appalling that many state prisons and county jails are under some form of federal court supervision. (11) Most recently, the Supreme Court found the physical and mental health care in California prisons appalling--one inmate dying needlessly from iatrogenic causes every six days (12)--indeed, so appalling that they could not be improved without considerable population reduction. (13) Eighty thousand inmates are housed under conditions of solitary confinement, (14) in tiny cells with no outside stimulus, (15) suffering abundant forms of neglect (16) and deteriorating mental health. (17) The United States is one of the only Western industrialized democracies in which the death penalty is alive and well, retained in thirty-two of its states. (18) At least a quarter of the United States prison population consists of nonviolent drug offenders serving lengthy sentences, (19) while the legacy of the War on Drugs continues to fuel horrifying violence in the United States (20) and Mexico. (21)
Much academic and popular literature on American incarceration frames its critique of this phenomenon in the context of what has come to be known as the Prison Industrial Complex (PIC). Indeed, the term returns approximately 555,000 results in a Google search. (22) Here are some definitions of the PIC provided by advocacy sites:
* [A] term we use to describe the overlapping interests of government and industry that use surveillance, policing, and imprisonment as solutions to economic, social and political problems.... [Power over inmates] is also maintained by earning huge profits for private companies that deal with prisons and police forces; helping earn political gains for "tough on crime" politicians; increasing the influence of prison guard and police unions; and eliminating social and political dissent by oppressed communities that make demands for self-determination and reorganization of power in the US. (23)
* [A] set of bureaucratic, political, and economic interests that encourage increased spending on imprisonment, regardless of the actual need. The prison-industrial complex is not a conspiracy, guiding the nation's criminal-justice policy behind closed doors. It is a confluence of special interests that has given prison construction in the United States a seemingly unstoppable momentum. It is composed of politicians, both liberal and conservative, who have used the fear of crime to gain votes; impoverished rural areas where prisons have become a cornerstone of economic development; private companies that regard the roughly $35 billion spent each year on corrections not as a burden on American taxpayers but as a lucrative market; and government officials whose fiefdoms have expanded along with the inmate population. (24)
* "[A]n interweaving of private business and government interests. Its twofold purpose is profit and social control. Its public rationale is the fight against crime." (25)
Eric Schlosser points out that "[p]rivate prisons are the most obvious, controversial, and fastest-growing segment of the PIC," (26) and indeed, these broad definitions frequently mention private prison companies as the most salient example of its harms. In an eponymous piece from 1998, Angela Davis writes:
Prison privatization is the most obvious instance of capital's current movement toward the prison industry. While government-run prisons are often in gross violation of international human rights standards, private prisons are even less accountable. In March of this year, the Corrections Corporation of America (CCA), the largest U.S. private prison company, claimed 54,944 beds in 68 facilities under contract or development in the U.S., Puerto Rico, the United Kingdom, and Australia. Following the global trend of subjecting more women to public punishment, CCA recently opened a women's prison outside Melbourne. The company recently identified California as its "new frontier." (27) Indeed, critical prison literature commonly takes on private prison companies, assuming that private incarceration is, by definition, worse than public incarceration, both for philosophical-ethical reasons and because its for-profit structure creates a disincentive to invest in improving prison conditions. These concerns are reasonable and understandable. The concept of private enterprises designed to directly benefit from human confinement and misery is profoundly unethical and problematic. But while I share the critics' concerns with private prisons, I think that focusing on private prison companies as the source--or even the salient representation--of all evil in American incarceration is misguided and myopic.
My concern with the critical movement's focus on private incarceration does not stem from wide-eyed belief in an unregulated, free market's ability to do well by doing good. Quite the contrary, an unregulated correctional market is a sure recipe for the indifference and cruelty we see in America's prisons every day. However, the focus on private actors as the bogeymen of American incarceration belies a naive understanding of neoliberal politics and a gross underestimation of the extent to which everyone--private and public actors alike--responds to market pressures and conducts his or her business, including correctional business, through a cost/benefit prism. This Article argues that the profit incentives that brought private incarceration into existence, rather than private incarceration itself, are to blame for the PIC and its evils. Further, these evils cannot be remedied in full without carefully structuring incentives for correctional agencies and institutions that prioritize the goals we want to see manifested in the world, namely, recidivism reduction and humane confinement conditions.
The Article relies on two main bodies of literature from opposing political and economic perspectives: the progressive and radical literature on neoliberalism, and the libertarian literature on public choice economics. The literature on neoliberalism describes the retreat of the state from its welfarist responsibilities and the emergence of a disturbingly unmitigated form of capitalism. (28) Public choice literature exposes the ways in which public actors-legislatures, judges, politicians, and other government agencies and individuals--conduct their affairs under the same microeconomic principles that have traditionally been used to analyze the behavior of private corporations and businesses. (29) While...