Privatization and Flexibility: Legal and Practical Aspects of Interjurisdictional Transfer of Prisoners

• Author: David Shichor,Dale K. Sechrest
• Published date: 01 September 2002
• DOI: 10.1177/003288550208200305
• Date: 01 September 2002
• Subject Matter: Articles

THE PRISON JOURNAL / September 2002Shichor, Sechrest / PRIVATIZATION AND FLEXIBILITY

PRIVATIZATION AND FLEXIBILITY:

LEGAL AND PRACTICAL ASPECTS

OF INTERJURISDICTIONAL

TRANSFER OF PRISONERS

DAVID SHICHOR

DALE K. SECHREST

California State University, San Bernardino

One of the current issues in punishment and corrections is the privatization of con-

finement facilities (prisons and jails). Because private,for-profit correctional compa-

nies try to achieve maximum efficiencyin filling beds to ensure profits, they are likely

to use the transfer of prisoners from one jurisdiction to another more often than do

public agencies. In many cases, this may occur without the agreement or the knowl-

edge of government authorities, local officials,and citizens. This article reviews some

of the legal and practicalissues involved with transfer policies and looks into some of

the recent cases of interjurisdictional transfersby private corrections companies and

their implications for prisoners, their families, governmentauthorities, monitors, and

host communities.

It is a commonplace observation that the sociopolitical climate in Amer-

ica has become more conservative since the 1970s. This development also

had an impact on penal philosophy and practice. As Feeley and Simon (1992)

pointed out, a “new penology” has emerged in which “increasing primacy

[is] given to the efficient control of internal system processes in place of the

traditional objectives of rehabilitation and crime control.”Accordingly, new

policies were developed that “targetoffenders as an aggregate in place of tra-

ditional techniques for individualizing or creating equity” (Feeley & Simon,

1992, p. 450).

This approach puts a strong emphasis on the control of “dangerous” popu-

lations and the effective management of the criminal justice system. These

developments were reflected in the get tough attitude toward crime, the dec-

laration of “war on drugs,” the legislation of severe penalties culminating in

more mandatory prison terms, and various three-strikes statutes of question-

able effectiveness (see Dickey & Hollenhorst, 1998).

Matthew A. Robby assisted in the research for this article.

THE PRISON JOURNAL, Vol.82 No. 3, September 2002 386-407

© 2002 Sage Publications

386

As a result, prison and jail populations have grown rapidly. For example,

the U.S. prison population (state and federal) grew from 328,695 at the end of

1980 to 1,333,561 by midyear 1999, a 305% increase (Beck, 2000), with

concomitant increases in correctional costs at all levels of government (see

U.S. Department of Justice, 1998). Consequently, it became difficult for

many states to keep up with prison population growth and to provideenough

room for the constant flow of incoming inmates. This situation reached a cri-

sis point in 1994 when 39 states and three additional jurisdictions (Washing-

ton, D.C., Puerto Rico, Virgin Islands) were under court order to limit their

inmate populations and/or improve conditions in either the entire state sys-

tems or their major facilities (National Prison Project, 1995). Austin and

Irwin (2001) referred to this development as “America’s imprisonment

binge.”

Among others, these developments have created a fertile ground for the

entry of privatecorporations into the correctional “market.” The privatization

trend was facilitated by the strong ideological commitment of the Reagan

administration to the privatization of public services and the general ten-

dency of that regime to diminish governmentregulations. The importance of

this issue is reflected in the growing number of books and articles dealing

with this subject (e.g., Bowman, Hakim, & Seidenstadt, 1993; Easton, 1998;

Harding, 1997; James, Bottomley, Liebling, & Clare, 1997; Logan, 1990;

McDonald, 1990; Moyle, 1994; Robbins, 1989; Shichor, 1995).

This article deals with certain aspects of penal effectiveness as empha-

sized in the “new penology.” In this framework, our interest focuses on the

cost effectiveness and flexibility attributedto privatized correctional institu-

tions with a special emphasis on interjurisdictional transfer of prisoners in

the private prison industry to increase cost effectiveness and flexibility.

HISTORICAL PERUSAL OF PRIVATIZATION

Private involvement in the management and operation of jails and prisons

has always had an economic justification.The management of jails by private

individuals has a long history,especially in England, the American colonies,

and later in the United States. In England in the 13th century,there were local

jurisdictions in which private entrepreneurs were involved in the manage-

ment of jails. In some localities,

sheriffs hired working gaolers and threw the cost on the Exchequer,and in the

same period the crown sometimes relieved itself of such expenses, together

with the cost of maintenance, by requiring a subject to keep a gaol in return for

land, or by selling the right to do so for cash. To a growing extent, how-

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