Persistent puzzles

• Published date: 01 May 2019
• Author: Richard Sparks,James Gacek
• DOI: http://doi.org/10.1111/1745-9133.12445
• Date: 01 May 2019

DOI: 10.1111/1745-9133.12445

RESEARCH ARTICLE

PERSISTENT PUNISHMENT

Persistent puzzles

The philosophy and ethics of private corrections in the context

of contemporary penality

Richard Sparks1James Gacek2

1Edinburgh Law School, Universityof Edinburgh

2Department of Sociology, Memorial University of Newfoundland

Correspondence

Richard Sparks, School of Law, University

of Edinburgh, Old College, South Bridge,

Edinburgh EH8 9YL, U.K.

Email:r.sparks@ed.ac.uk

Research Summary: In our article, we attend to the

implied outlooks (“philosophies” in the sense of operative

practical discourses and assumptions) and the competing

ethical concerns that animate differing views on privatiz-

ing corrections. We consider some normative arguments

and empirical observations that have been mobilized for

and against privatization since the inception of the mod-

ern version of this debate in the late 1980s, and we seek

to place these in the context of accounts of penal problems

over that contentious period. We argue that a multidimen-

sional approach to understanding the sociology of punish-

ment and in particular how certain forms of punishment

persist, survive, and thrive is required when considering the

privatization of corrections. In using such an approach, we

raise quizzical questions regarding the pairing together of

punishment and privatization, and as a result, we seek to

sharpen the discussion about future prospects.

Policy Implications: Greater attention must be paid toward

public involvement, knowledge, and understanding about

penal policies. With particular regard to the involvement

of private-sector actors and interests, this has implications

both at the initial contract negotiation stages of expand-

ing correctional privatization as well as at the rescission

of such contracts. The impact of penal arrangements on

the dignity and integrity of offenders—especially but not

Criminology & Public Policy. 2019;18:379–399. wileyonlinelibrary.com/journal/capp © 2019 American Society of Criminology 379

380 SPARKS AND GACEK

only prison inmates—their loved ones and communities,

and wider considerations of public interest are abiding and

unresolved concerns, and privatization policies must be

evaluated in light of these.

KEYWORDS

corrections, ethics, philosophy, privatization, punishment

1INTRODUCTION

The story of the privatization of penal institutions and services is not new. Indeed, Malcolm Feeley

has argued on several occasions over many years (e.g., 1991, 2014) that the association between penal

practices and private enterprise is a remarkably extended, embedded, and extensive one. For Feeley,

the implication of this long-standing involvement is that simple rejectionist arguments based on the

alleged incompatibility between the state-mandated phenomenon of criminal punishment and the many

and diverse roles of commercial actors are implausible (see Harding, Rynne, & Thomsen, 2019, this

issue).

Feeley (1991, 2014), however, also noted that the particular roles and contributions of private enter-

prise in respect of punishment have long included those of introducing innovative practices and tech-

niques and, thereby, of extending states’ penal capacity and reach.Such admonitions should aler t us to

the difficulty and scope of the task we confront in this article. If we think (and we do think this) that

special normative problems are posed by private-sector involvement in penal affairs, we had better be

on our mettle in identifying these. It would be wise not to assume that we can simply eliminate every-

thing that is “private” from the penal realm and in so doing somehow solve its multitude of moral,

political, and practical problems. At the same time, the nature of the phenomena under discussion is

ever mutating. If we are to speak illuminatinglyabout t hem, it is these practices and these institutions—

the ones we confront now or that are coming into being now—with which we must reckon. For this

reason, discussion of the philosophical and ethical questions posed by privatizing corrections and the

changing scope and challenges of contemporary penality cannot meaningfully be separated.

“Privatization,” as the essays collected in this issue make apparent, is a singular term for a many-

sided phenomenon, and for this reason, its use sometimes threatens to obscure rather than clarify. It

is used to refer to the actions of large, profit-seeking corporations and small social enterprises and

nonprofit agencies. It refers equally to the for-profit management of prisons (its most obvious as well

as most contentious form) and to a wide range of other phenomena from noncustodial supervision,

notably in the form of electronic monitoring for example, to the collection of fines and other monies,

to the provision of a host of ancillary services. It should be handled with care, therefore. Some of its

manifestations may not brook large in many people’s lists of the most controversial aspects of crim-

inal justice practices. Some may be welcomed, in some quarters at least, as sources of innovation,

progress, and liberalization. Others, however, may raise pointed questions about delegated authority,

accountability, the expansion of the scope of the penal network, and many other questions. As will

become apparent in this essay, we think Feeley (1991, 2014) has probably been right to argue that we

cannot simply reject “it” out of hand for it is not one thing. Nonetheless, it may be premature to think

that key questions of principle have been all resolved (often they have simply been put aside because

private-sector involvement has become more familiar and less questioned).