Introduction I. Prison Privatization as a Domestic Face of Globalization A. The Global Context: Privatization and Neoliberalization B. Privatization, Outsourcing, Deregulation, and Globalization: A Historical Perspective C. Private Prisons and the Myth of Efficiency 1. Revisiting the Rationales for Privatizing Prisons 2. The Chronology of Prison Privatization II. Prison Privatization and Prison Labor A. Prison Industry Enhancement (PIE) B. Federal Prison Industries (UNICOR) and the Debate Over Prison Labor C. Reforming Prisons Through Privatization: Two Models 1. Privatizing Inmate Labor: Chief Justice Burger's Task Force Model 2. Privatizing Prison Financialization: President Reagan's Privatization Commission Model 3. The Task Force and the President's Commission, Compared Conclusion INTRODUCTION
The pragmatics of privatization are terrain for a critical understanding of the relationship between government and business under the conditions associated with the globalization of neoliberal capitalism. (1) Prison privatization is especially significant in this context, given the fact that--for privatization advocates and critics alike, in the United States and elsewhere--prisons represent a bellwether for broader questions about the scope of government. (2) As John Donohue writes, "[f]ew roles in our American society seem more inherently 'public' than those of the police, the judges and the jailers." (3) Given the traditional association of prisons with core governmental functions, (4) prison privatization is strategically key to privatization proponents, as a test of the very notion of core government. (5) Core government--implying a non-delegable "duty to govern"--is itself an issue in debate. (6) The centrality of prison privatization to wider debates about privatization gives us our starting point in this Article. We agree with Frank Michelman's assessment that privatization raises constitutional questions in a way that globalization does not, at least not automatically. (7) Taken to an extreme, or in its most ideological form, one might imagine--with Michelman--that privatization makes government an "empty shell." (8) However, as Elaine Genders and others have noted, in the prison context, privatization does not automatically challenge the idea of core governmental functions since it does not automatically remove the state altogether from the process. (9) Setting up contractual terms, standards, monitoring procedures, accountability, and conditions for rescission may all remain with the state. (10) What, then, is the problem with prison privatization? In what follows, rather than discuss this question in traditional binary terms--public versus private, or more efficient versus less efficient--we read the private prison debate as a test of the government's ability to mediate the public's responsibility for the human conditions of citizenship. This enables us to take a broader perspective on what is at stake in these debates, especially for the prisoners involved, when the state decides to privatize.
Our findings, thus, challenge assumptions that would situate prison privatization as a test of government's scope. For one thing, privatization itself is a form of governmental action, and may involve various forms of control on the part of the contracting agencies. (11) More fundamentally for our purposes, the history we relate shows that privatization is not a unified phenomenon; prison privatization has a long and particular history that compels attention to diverse rationales and approaches. (12) Moreover, that same history shows that prison privatization became a test of government's scope only after a priority on limiting government was politicized and set in place as a matter of policy under the Reagan and Bush Administrations (and continued thereafter). In relation to prisons, then, privatization should not be seen as a necessary response to a contemporary state of affairs, but a favored response, for reasons that predate the inmate explosion. (13) Accordingly, we suggest that the key factors usually credited with causing the demand for private prisons arguably include the effects of a neoliberalization of public administration already well under way by the early 1980s. These are among the issues pursued in the following sections.
The "privatization of prisons" is a phrase that refers to many spheres of activity that are contractually separate and, in some ways (as we shall see), conceptually distinct--as some involve direct substitution of private-for-public providers, whereas others involve reconfigurations of purposes and policies. As areas of activity and related potential for reform--prison labor, prison services, prison construction, and management--may all involve quite distinct forms of enterprise. In this Article, we emphasize the human side of prison privatization--that is, those aspects of private sector involvement that affect inmates directly, such as their health care, nutrition, living conditions, and, especially for purposes of this Article, their labor. Looking ahead to our conclusions, one implication of our analysis is that direct human services--such as those that affect the dignity of the person, the integrity of the body, and the value of personal labor--should be treated differently by the law governing privatization. In these areas, in which people may be irreparably harmed, additional safeguards are warranted, along with more public involvement, and more provision for public involvement at the initial contract negotiation stages as well as rescission. Direct human vulnerability mandates more direct forms of public participation than those more impersonal domains of government contracts dealing with, for example, the construction of roads or bridges, and routine service contracts in which expenses and revenues may be more definitive. It is in this respect--namely, the human dimensions of prison contracts--that prison privatization may be more appropriately considered a bellwether for the provision of basic services, not just to inmates in public prisons, but also to other populations made vulnerable by confinement or other constraints, including labor precarity (structural underemployment), persistent poverty, chronic illness, or immigrant status.
Our aim, therefore, is to reexamine some of the key terms of discussion surrounding prison privatization. We propose a resetting of those terms in three respects. First, we argue that the context of prison privatization should include the privatization movement and its relevance to the globalization of capital in the 1970s (and continuing today). Second, resetting the context in this way lengthens the modern history of prison privatization from its conventional starting point in the prison-overcrowding crisis of the late 1980s and 1990s, (14) to show its emergence at least a decade earlier, as part of the broader movement to privatization in state and federal government. Seen from that longer perspective, prison privatization is integral to privatization in other sectors, and, in turn, to the neoliberalization of government and global markets. The longer view also leaves room for an account of prison privatization that considers aspects of privatization affecting the prison sector in addition to prison privatization per se. In this Article, we discuss prison labor as a key element of that larger picture.
Thus, third, we turn to prison labor. We discuss two federal initiatives that involved the private sector in corrections well prior to prison privatization. Both of these involved prison labor, though under substantially different models, and with different aims. These initiatives--their similarities as well as their differences--shed light on the privatization of prison labor as a crucial through-line of reform from the 1970s, and even earlier, through the present day. The more complete chronology that we advocate is rooted to debates--within government and between business and labor--about prison labor as a sector of the national and global work force. Issues related to inmate labor are relevant to the analysis of prison privatization as well as to the potential for improving this aspect of our justice system through law. In particular, they make visible the wider situation of those who labor in the current "post-Fordist" era outside of the prison walls. (15) We argue for acknowledging inmate labor as labor, as a fresh starting point for debates currently defined by the polarity of punishment and rehabilitation. Revising the terms of discussion in these three ways (resetting context, lengthening the chronology, and focusing on the...