301 lines
15 KiB
Plaintext
301 lines
15 KiB
Plaintext
FEBRUARY 1990
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PRIVATIZATION OF PRISONS:
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FAD OR FUTURE
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By
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Lt. David K. Burright
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Linn County Sheriff's Office
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Albany, OR
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Very few people would dispute that this Nation's prison
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system is in serious trouble. Corrections administrators are
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faced with grossly over-crowded conditions, shrinking revenues,
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and increased competition for operating capital. These problems
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are combined with soaring crime rates, a public cry for more jail
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sentences and longer incarcerations of criminals, and a Federal
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judiciary which all too often imposes sanctions and restrictions
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in an effort to force needed change.
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It's no wonder that in response to these pressures, public
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officials are grasping for ideas and solutions to the prison
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problem. One major idea continually being proposed is the
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private contracting and operation (privatization) of adult
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correctional facilities.
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The concept of privatization fuels a very controversial and
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heated debate. Most arguments center on whether private
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contractors can truly provide a better service at a lower cost
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than public practitioners while still not sacrificing quality,
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i.e., physical security, inmate programs, and support. An even
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more difficult issue involved in this controversy is whether
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corrections should either philosophically, ethically, or morally
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be turned over to private enterprise. However, questions still
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remain. Is privatization a panacea for the ills of corrections
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in the United States? Is it a fad or is it the future?
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BACKGROUND
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The concept of private operations of correctional
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facilities is not a new one. After the Civil War, many States
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entered into contracts with private businesses to operate State
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prisons. The inmates, however, were used virtually as slaves,
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and the practice degenerated to ``...a well documented tale of
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inmate abuse and political corruption.'' (1) By the late 1800's,
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the practice of complete operation of prisons by private vendors
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had been abolished and control was taken by the States and
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counties.
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Since then, public opinion and pressure have vacillated
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regarding the treatment of lawbreakers. At times, public opinion
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has been one of ``reform,'' with the idea that criminals should
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be treated and not necessarily incarcerated. This was evident in
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the 1960s and early 1970s when the building of new prisons and
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jails was very unpopular and thought unnecessary. Many
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practitioners believe this is the one reason that there is such a
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shortage of jail/prison beds today.
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In the meantime, private businesses recognized a potential
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market and began offering specialty programs and began
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contracting for medical and food service and housing for
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low-security juveniles and illegal aliens being held for the
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Immigration and Naturalization Service (INS). However, it was
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not until these private vendors began pressing for the
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opportunity to take over the complete management and operation of
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full-scale adult prisons and jails that opposition began to
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mount. Even so, by 1987, three States had adopted legislation
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authorizing the private operation of the State facilities, and
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a dozen more were actively considering it. (2) Today, there are
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64 private companies in this business, and several States and
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counties have prisons being operated by these companies. (3)
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ARGUMENTS--PRO
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BETTER PERFORMANCE
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The proponents of the private operation of prisons and jails
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offer a variety of arguments to support their position. Many
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believe the government has not done a good job of management.
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``Costs have soared, prisoners are coming out worse off than when
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they went in, and while they are in they are kept in conditions
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that shock the conscience, if not the stomach.'' (4) Because the
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work would be performed under a service contract, proponents say
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that vendors can be forced to perform or face termination of the
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contract.
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COST SAVINGS
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Private vendors believe they can operate the facilities for
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a much lower cost, saving 10-25% of the Nation's corrections
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budget. These savings are possible because the vendors are
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unencumbered by politics, bureaucracy, and civil service that
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influence public operations.
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An additional incentive to economize is the competition from
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other private vendors. Others claim that costs can be lowered by
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reducing employee turnover through better training, recruiting
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and supervision, and reduced use of overtime.
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EFFICIENCY
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Many private vendors employ administrators who are highly
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experienced in corrections; in fact, a large number have served
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in the public sector. (5) When facilities are transferred to the
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private sector, the public employees on staff are offered the
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opportunity to be hired by the private operators in most
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instances, thereby assuring trained, qualified employees are
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manning the prisons. A private business could also contract with
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two adjoining States to house prisoners in a common facility,
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resulting in increased efficiency for both the public and the
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vendor.
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REDUCED CIVIL LIABILITY
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Some vendors have agreed to indemnify the government should
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lawsuits be filed against the facility. As a means of further
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reducing the government's potential for liability, these
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operators consent through their contracts to run the facility in
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accordance with American Correction Association (ACA) standards.
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ARGUMENTS--CON
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REDUCED COSTS OR SERVICE?
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Opponents to privatization strongly question whether there
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will be any real savings by contracting out the operation of
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prisons and jails. (6) They argue that cost cutting can only be at
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the expense of humane treatment or security measures. Since the
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majority of operating costs center on personnel, especially in
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maximum security facilities, any significant reductions would
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have to be made in the daily costs of inmate care or in measures
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that would jeopardize the security of the facility.
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Even though vendors point to lower inmate costs per day of
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the current privately run operations, opponents state that most
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of the private experience is with short-term minimum security
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facilities and special program operations (juvenile facilities,
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INS lock-ups, halfway houses, etc.). Operating expenses for
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these facilities are much less than for a maximum security prison
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or jail, which requires additional staff, security measures, and
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inmate programs.
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Opponents also question whether the ``lower costs'' include
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the full cost of contract administration and management. To
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ensure the vendor is complying with all contractual obligations,
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especially in a large multifacility operation, would require
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governmental monitoring and administration resulting in an
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additional level of bureaucracy. (7)
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UNCONTROLLABLE FUTURE COSTS
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Opponents fear that once private vendors take over facility
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operations and the government dismantles its organizational
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structure, it will significantly reduce the public's leverage on
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contracts negotiated in future years. This reduced leverage and
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lack of alternatives could result in huge future costs.
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The public must also be prepared to reassume control of the
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facilities on short notice should the contracting vendor be
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unable to fulfill its contract. In this situation, unlike in the
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public sector, the government would not have the option of simply
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shutting down the operation, and the resultant problems and
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costs of regaining control would be staggering.
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LATERAL HIRING OF PERSONNEL
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Corrections administrators fear that the private sector will
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lure away the best, most experienced employees, making it even
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more difficult to manage the facilities remaining under
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government control. Unless carefully monitored, the private
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vendor may also attempt to have low-security inmates assigned to
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their facilities, thereby leaving the high-risk, higher cost
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inmates to the government.
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CIVIL LIABILITY
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Opponents to privatization argue that the government cannot
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contract away its civil liability as it relates to the proper
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management and operation of corrections facilities, and this
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position appears to be supported by the courts. (8) Also, the
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mere fact that a contractor agrees to abide by ACA standards
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does not guarantee that a civil rights complaint will not be
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successfully litigated, as the courts have not recognized any set
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standard to be followed in these cases. (9)
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With regard to indemnification, although promising in
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appearance, there has not yet been a court case to be able to
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judge the practicality of this. In addition, opponents are
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concerned as to if and how vendors will be insured. Will they be
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able to financially survive in the face of a large settlement,
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and if not, who will bail them out?
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CONSTITUTIONAL/MORAL/ETHICAL ISSUES
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Probably the most important of all arguments against
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privatization deals with the question of whether the government
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should delegate the authority for such a traditional and
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important governmental function as the deprivation of freedom to
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citizens (criminals). Opponents say that corrections centers on
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issues at the very core of American government and that it has no
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business being in the hands of private enterprise.
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For instance, absent any special legislation or
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deputization, private contractors have only the authority of a
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private citizen to arrest, use force in defense of themselves or
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others, and to carry firearms. They have no special police
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powers or authority. (10) This has tremendous implications when
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considering incarceration and the use of force to maintain
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control and security.
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Another important constitutional issue deals with decisions
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affecting parole. The American Civil Liberties Union's position
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on the issue is quite clear:
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``...we do see civil liberties implications in the
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situation where private entities or persons can
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affect or impact the length or duration of con-
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finement of a prisoner. Plainly it is in the
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interest of private entrepreneurs to increase the
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number of prisoners in facilities because they are
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paid by the head ... any decision which impacts
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these numbers must be made by government officials
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with no ties to a private contractor. A concrete
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example is in the disciplinary realm where jail or
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prison officials are empowered to take away good
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time or file adverse disciplinary reports which
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will in turn affect parole release.'' (11)
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CONCLUSION
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The move toward the privatization of adult correctional
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facilities in America is more than a passing fad. Private
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enterprise is showing a willingness to commit millions of dollars
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in an attempt to break into what it believes to be a very
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lucrative market.
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But, is it really the future? On this, the ``jury is still
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out.'' Both sides present convincing arguments. Proponents tout
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reduced costs and increased efficiency, while opponents ask if
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the savings are real and question the basic legitimacy of
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privatization. The problem is that neither side has been able to
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conclusively prove its case.
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The President's Commission on Privatization has recommended
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that ``proposals to contract for the administration of entire
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facilities at the federal, state, or local level ought to be
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seriously considered.'' (12) Perhaps that's good advice, but the
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issue will have to be ultimately decided by the people within
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the affected jurisdictions and the courts.
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FOOTNOTES
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(1) John J. DiIulio, Jr., Private Prisons (Washington, DC:
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Government Printing Office, National Institute of Justice,
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1989), p. 3.
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(2) Ibid., p. 1.
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(3) Telephone interview with Dean Moser, National Sheriffs'
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Association, Alexandria, VA, January 19, 1989.
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(4) House of Representatives, 99th Congress, Hearings Before
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the Subcommittee on Courts, Civil Liberties, and the
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Administration of Justice of the Committee of the Judiciary,
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Privatization of Corrections, quoting statement of Ira P.
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Robbins, Concerning Privatization of Corrections (Washington,
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DC: Government Printing Office, 1985), p. 6.
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(5) Ibid., p. 38.
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(6) Opposition or concern has been voiced by the American Bar
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Association, American Civil Liberties Union, National Sheriff's
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Association, and various labor organizations.
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(7) Corrections Corporation of America (CCA) includes the cost
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of 1 government monitor in the cost of their contracts.
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(8) Medina v. O'Neill, 589 F.Supp. 1028 (S.D. Texas, 1984),
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which held the INS responsible for constitutional violations
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against 16 illegal aliens who were held at the direction of the
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INS by a private contractor.
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(9) Bell v. Wolfish, 441 U.S. 520, 995 S.Ct. 1861, 60 L.Ed.2d
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447 (1979).
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(10) Private Security Advisory Council, Scope of Legal
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Authority of Private Security Personnel (Washington, DC:
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Government Printing Office, Department of Justice, 1976), p. 1.
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(11) Supra note 4, quoting ACLU Position on Privatization of
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Prisons and Jails, p. 3.
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(12) Report of the President's Commission on Privatization
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(Washington, DC: Government Printing Office), p. 150.
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