Holding private prisons accountable: a socio-legal analysis of "contracting out" prisons.

• Author: Gran, Brian

Introduction

IN THE CONTEXT OF A PRISON BOOM (GOTTSCHALK, 2002), THE RAPID ESTABLISHMENT of private prisons over the last few decades (Ratliff, 1997) reflects a heightened belief that private entities can perform public functions as well as public entities can (Gilman, 2001). In private prisons, the public functions of punishment, detention, rehabilitation, and general interests of public safety are performed largely by for-profit corporations. For some, shifting punishment from public to private raises grave concerns. A common belief is that governments are disinterested parties from the perspective of personal benefit--that is, they are accountable directly to the public, and therefore have an interest in protecting the public through an effective corrections system. However, private corporations are seen as profit-maximizers with a rational incentive to make as much money as possible (Ratliff, 1997; but see Fairfax, 2004). The possibility of a private prison yielding a profit based on imprisoning individuals raises justifiable skepticism.

Despite concerns arising from shifting the public function of punishment into the private sphere, governments domestically and abroad have recently been willing to argue that private companies can do just as good a job as they can. Governments contract out government responsibilities to private corporations, attempting to have private entities perform a public function while still holding these corporations publicly accountable. This article presents a study of three aspects of accountability that are essential to the contractual relationship established by government and the private firm managing the private prison: formation, maintenance, and liability. Through formation, the government-firm relationship sets out expectations of what the prison and its management will require, such as the physical plant and staffing. Maintenance consists of day-to-day operations, which includes expectations of relationships between prisoners and between prisoners and staff. Liability indicates expectations of what government and the private prison can anticipate if the firm fails to meet contractual or other obligations. Through the contractual components of formation, maintenance, and liability, accountability may be enforced, social groups protected, and justice pursued. In this article, we compare contracts for private prisons in Australia, Canada, and the United States to examine how governments support democratic accountability, protect disadvantaged groups, and promote justice in prisons. These three countries share features important to social policy organization, including federalist governments and common-law systems (Castles, 1993). The purpose of this examination is to determine whether and how the contractual relationship is used to strengthen public accountability of government-private relationships.

The Powerful Trend of Public to Private

When governments shift their responsibilities to private actors, does accountability weaken? Perhaps part of renewed efforts of political liberalization (Chibundu, 1997: 3), contemporary privatization suggests the dividing lines separating public and private are blurring (Minow, 2000:1061-1062; Dolovich, 2005:448). Research demonstrates, however, that government-private delegation is neither dichotomous nor one directional. Freeman's (2003: 1285) conception of publicization is a useful idea for studying the establishment of relationships between government and private firms. Publicization occurs when the government reasserts control over part of a private effort, a shift of private responsibility back to government. Publicization likewise indicates a process of shifting responsibilities between the government and the private firm (Freeman, 2003: 1314; Davidson, 2006: 275).

Constitutional questions exist about many of these government-private relationships, particularly whether it is legitimate for government to delegate responsibilities to private firms (DiPiano, 1995: 2; Casarez, 1994-1995: 261; Froomkin, 1995: 548, 574-577; Duitsman, 1998). One such responsibility is the imprisonment of convicted criminals (Schneider, 1999). Each year, U.S. federal and state governments effectively "contract out" thousands of prisoners to private companies. Yet it is a mistake to label these prisons as truly and solely private; the long arm of governmental regulation frequently reaches into these private prisons to maintain a significant degree of control (Dolovich, 2005: 481). Governments often use contracts to impose public responsibilities on private companies. In some cases, publicization may occur when the government seeks to re-form a contract with a private contractor.

Prevalence of Private Prisons

Private prisons continue to receive significant attention in the press (Burrows, 2007; Weaver, 2007). Although typically considered a new phenomenon primarily found in the United States, private prisons have existed for some time (Lanza Kaduce et al., 1999; Pozen, 2003: 257) and are ubiquitous. According to the Prison Privatisation Report International (PPRI), based at the University of Greenwich and directed by Stephen Nathan, private prisons exist across the world, from Brazil to the Czech Republic to France to the United Kingdom to South Africa to Canada (PPRI, 2006). A 2004 report found that Australia had the highest proportion (17%) of prisoners in private prisons, followed by the United Kingdom (10%), with the United States at seven percent (Roth, 2004). Many of these companies are traded on public stock exchanges (Corrections Corporation of America [CXW], Geo Group [GEO], and Group 4 Securicor [GS]) and have been subjects of mergers and acquisitions.

The U.S. Bureau of Prisons (BOP, 2007) indicates that as of March 2007, 19,322 inmates were housed in facilities managed by private companies contracting with the BOP, representing nearly 10% of federal inmates. The BOP has contracted with private companies to manage at least 11 correctional institutions (Ibid.). Most of the federal-private facilities are low-security facilities (with the exception of one medium-security facility). These facilities are located across the United States, including California, Georgia, New Mexico, North Carolina, Ohio, Pennsylvania, and Texas. By comparison, 176,301 inmates are housed in public facilities (Ibid.), nearly 180 of which are federal. Further, many states have established private prisons. Texas, for instance, has 40 private prisons (Ghosh, 2006).

Efficiency: One justification for establishing private prisons is that they are more efficient and cost-effective than their public counterparts since bureaucratic entanglements are diminished (for a review of this contention, see Froomkin, 1995: 557). But the only existing evidence provides ambiguous support, partly due to difficulties in comparing private prisons to public prisons (McDonald et al., 1998; Dolovich, 2005). Moreover, a cheaper prison does not necessarily salve concerns about private prisons: even if they are less expensive, it may be the result of cost cutting by the private firms (Casarez, 1994-1995: 257-258; DiPiano, 1995: 11; Freeman, 2003: 4).

DiPiano (1995:11) points to three factors involving the hiring and training policies of prison staff that are cause for alarm. First, firm officials may not hire adequately credentialed staff members. Second, once hired, firm officials may not train their staff members appropriately for the types of prisoners the staff will guard (ranging from harmless to particularly violent). Third, private prisons may experience significant turnover among staff members (Ibid.), preventing staff members from gaining requisite experience and prison-specific knowledge and skills to specialize at the level of public prison employees.

Accountability: The theme of this article is accountability--that is, how various constituency groups hold private prisons accountable, if at all (Pozen, 2003). We suggest that private prisons are accountable to three main groups: taxpayers (Freeman, 2003: 7), residents, and the inmates. Schaffer (1996: 1082) explains that the private firm has entered a contract with the government, and that the firm must therefore meet the government's expectations (Sabatino, 1997:187). Depending on how the contract is arranged, however, voters may be ignored (Casarez, 1994-1995: 257; Froomkin, 1995: 548, 558, 559, 560-562, 607, et seq.; Minow, 2003). In stark contrast to their public counterparts, private prison administrators are not elected, appointed, or impeachable (Froomkin, 1995: 548). And because these prisons are private, the press does not have ready access; moreover, records are not necessarily public (Casarez, 1994-1995: 251).

The second group to whom private prisons are accountable is residents proximate to the private prisons. Despite some overlap, most residents are taxpayers, local residents (especially those for whom the prison is literally in their backyard) with particular interests. Although the community may benefit from private prisons through increased employment and tax revenues, these residents now find their homes to have hundreds, possibly thousands, of new neighbors--the private prison's inmates. Further, a private firm can elect not to renew its contract after fulfilling its obligations. Residents may rely on the prison as an employer and taxpayer, yet the firm can quickly and carelessly exit their community.

The third primary group with whom accountability rests is the prison's inmates. Sabatino (1997: 186) states that in public-private relationships, a contractor is accountable to the users of their services or products, in this case the inmates (Schneider, 1999: 192). Sabatino asks whether a private prison can effectively fulfill prisoners' rights (Ratliff, 1997: 385). Casarez (1994-1995: 250; 258) notes that private companies profit by keeping inmates in prison for as long as possible. Sabatino (1997:182) argues...