The privatization of California correctional facilities: a population-based approach.

AuthorTafollaYoung, Kathryne
  1. PRISON PRIVATIZATION IN THE CALIFORNIA CONTEXT

    1. A FRAMEWORK FOR ASSESSING PRIVATIZATION

      Most states' interest in privatizing segments of their prison system is fueled largely by a desire to cut costs. (1) After all, prisons are a vast expenditure. California spends $8.75 billion annually on its Corrections Department (CDCR)--$34,150 per inmate. (2) In the United States, state correctional expenditures rose 145%, in constant dollars, from 1986 to 2001.3 On average, prison expenses consume 77% of states' correctional budgets. (4) Certainly, states have an incentive to cut prison costs where they can, and to this end, privatization holds intuitive appeal. After all, if a state hinges its willingness to contract with a private corporation upon the corporation's ability to offer a bid 5 to 10% lower than current state expenditures, it is difficult to see how the state would not save money. Indeed, some research suggests that privatization of state prisons, generally implemented through a company such as Corrections Corporation of America (CCA), has already saved some states considerable expense. (5)

      When examined more carefully, however, the numbers are less clear-cut. For one, some studies showing cost savings lack controls for factors likely to affect costs, such as inmate characteristics. (6) Comparing a minimum-security private prison to a maximum-security public prison on the basis of cost is of limited use, as the latter requires more guards and different facilities. Second, categorizing costs can be problematic. Prison expenses are often understood in terms of "avoidable" costs (those that may be passed on to a private contractor) and "unavoidable" costs (those that fall to the state even after a contractor is paid). As Gaes and Camp, et al., point out, it is logistically difficult to parcel expenditures into these two types, and whether a cost is categorized as "avoidable" or "unavoidable" may drastically affect a study's results. (7) Third, and relatedly, some studies lack controls for variables such as inmate population size and geographic variation in cost of living. (8) Such controls are crucial to reliability: if Massachusetts spends four times more on land to build a prison outside of Boston than California spends on land for a prison in the middle of the San Joaquin Valley, this difference will affect relative cost--even though, by many measures, the cost of purchasing land would be categorized as "unavoidable," since it would probably not be passed on to a private contractor. Finally, even the best-intentioned researchers face assorted other complications. Indecipherable state bookkeeping, coupled with a wide variance among contracts, makes it difficult to compare institutions fairly.

      Studies that take a more nuanced approach to cost calculation paint a murkier picture of privatization's cost-effectiveness. For example, in 1999, Pratt and Maahs conducted a meta-analysis of twenty-four previous cost studies, and concluded that there was no significant effect of private versus public prison ownership with regard to cost. (9) Many other estimates suggest that financial savings may be slim. As the Bureau of Justice Assistance concluded in 2001, researchers remain divided about how much--if any--cost can be saved through privatization; (10) no reliable answer is readily available. Thus, this Note will not address the overall savings potential of privatization; rather, the limited discussion of fiscal efficiency presented here will center only upon very specific, self-contained (and thus more readily comparable) facets of prison services.

      Proponents of facility-level privatization have also suggested that privatization may have a role in lowering recidivism rates. Lanza-Kaduce, Parker, and Thomas compared recidivism rates in two Florida facilities, one private and one public, and concluded that rates were lower among inmates who had been housed in the private facility. (11) It is exceedingly difficult to compare interstate recidivism rates, (12) but some research suggests that California's are the highest in the country, at 66%. (13) Thus, although reducing recidivism is important to all states, it is a particularly crucial consideration for California.

      However, like the fiscal benefits of privatization, the recidivism-reducing benefits of privatization are elusive. (14) Few studies have compared recidivism rates of privately housed prisoners to those housed in public facilities, but the most comprehensive studies in this regard suggest the difference is negligible at best. A Florida study that used multiple measures of inmate exposure to private prisons, analyzed multiple groupings of inmates, and controlled for a range of recidivist behaviors, found "[n]o significant recidivism rate differences ... between private and public prison inmates for adult males, adult females, or youthful offender males." (15) Insofar as research has shown, there is little reason to believe that, absent other differences, recidivism rates will increase or decrease solely because an institution is private.

      In examining what role privatization should serve in California criminal justice reform, this Note approaches privatization as a structural tool for systemic improvement, rather than simply a way to replicate existing structures more cheaply. But before making any policy suggestions, it is first necessary to identify the most significant aspects of the California criminal justice system upon which privatization, in any form, might bear.

    2. SPECIAL IMPLICATIONS OF PRIVATIZATION IN CALIFORNIA

      While cost may be the impetus for most prison privatization in the United States, the most dire circumstance facing California corrections is overcrowding. The CDCR reported an increase of more than 5% in the prison population last year. (16) Of course, a population increase alone does not cause overcrowding, but the CDCR's bed space is extremely limited; California's prison system is currently operating at 200% of its capacity. (17) Classrooms, gyms, and other programming space has been filled with beds--often stacked three high--and occasionally crowding has become so severe that prisoners have had to sleep outside. (18) Alleviating this overcrowding is crucial.

      Next, any privatization measure in California must be assessed with regard to its potential effect on the prison guards' union, the California Correctional Peace Officers Association (CCPOA). One of the most politically influential action groups in the State, the CCPOA, which numbers 33,350, (19) has lobbied for victims' rights, pay raises for its members, (20) and other causes--generally with success. (21) The political climate surrounding the CCPOA is heated, both from union supporters and from those who think the union has garnered too much power. One especially contentious factor involves allegations of prisoner neglect and abuse by guards. (22) Another involves the guards' contract. By many analyses, California's prison guards are among the highest paid in the country, (23) with average salaries of around $64,000. (24) With overtime, that salary can reach six figures. In fiscal year 2005-2006, over 900 workers added $50,000 or more to their base salaries in overtime pay; over 1600 officers' total earnings topped $110,000. (25) Their contract also limits the State's ability to reassign guards to tasks other than those delineated in their contracts, (26) and makes managerial reassignments difficult. (27) An independent review panel concluded that for the last five years, the CCPOA's contracts have created an "'unfair and unworkable tilt toward union influence' in a way that 'seriously undermine[s] the ability of management to direct and control the activities of existing correctional departments.'" (28) The weighty presence of the guards' union in California corrections, and in California politics generally, raises several issues that should be assessed in relation to privatization.

      Additionally, since California's inmate population is one of the three largest in the country, the sheer number of inmates in CDCR facilities--approximately 170,000--translates into a large number of prisoners with special needs. Some of the biggest sub-groups include inmates over fifty years of age (more than 10% of the inmate population), (29) HIV-positive inmates (HIV is five times more common among inmates than among the general population; (30) 0.7% of California's combined state and federal prison population is HIV-positive (31), and prisoners with mental illnesses (around 15% of the prison population (32). These populations alone total over 35,000 California inmates. Another large special needs group is illiterate or barely literate inmates. The average prisoner is thirty-six years old, but reads at a seventh grade level. (33) In considering how privatization might be used as a tool in the California criminal justice system, it is useful to take stock of these populations and consider the ways in which privatization might help or hinder their treatment, as well as the financial implications of such changes.

    3. GENERAL IMPLICATIONS OF PRIVATIZATION

      On the national level, negative legal and moral assessments of privatization tend to be the crux of many opponents' arguments. The simplest moral and philosophical argument against privatization tends to take the form that states are fundamentally responsible for corrections and should not be permitted to contract away this responsibility. The legal argument against privatization is intertwined, but difficult to assess in the abstract. Some privatization opponents believe that private prisons provide less training and supervision of individual guards; they fear that this, in turn, leads to disregard of prisoners' constitutional rights. For now, it is simply worth noting that this concern is strongly implicated in any discussion of privatization.

      A second reason opponents are wary of privatization is the possibility that the...

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