Prisons, Privatization, and the Elusive Employee-Contractor Distinction — Part 5

On Friday, I posted the introduction to my latest paper, Prisons, Privatization, and the Elusive Employee-Contractor Distinction. On Monday, Tuesday, and Wednesday, I posted following sections. You can find the whole paper here on SSRN.

Here’s the last substantive section, on symbolism and expressive concerns. The conclusion should come tomorrow.

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A. Public Perception

Suppose my arguments are correct, and there’s no inherent difference between public employees and private contractors. But suppose the public nonetheless feels differently. Of course, because public and private providers can differ in their attitudes or in the actions they take, public attitudes might be molded by these differences; so, to keep the hypothetical clean, let’s again assume that public and private providers don’t differ empirically. Suppose public attitudes against privatization are entirely based either on incorrect beliefs about empirical differences or on a perceived “social meaning” of privatization.

Perhaps such attitudes are based on a view among the public that private companies have illegitimate private purposes. Martha Minow, for instance, writes that private prisons “may jeopardize the legitimacy of government action because the public may suspect that private profit-making—rather than public purposes—is being served.”Justice Arbel of the Israeli Supreme Court strikes a similar note:

[E]ven if it is not possible to point to a specific violation, the transfer of the power to operate a prison to a private enterprise creates the impression that irrelevant considerations are involved . . . , something that undermines the moral authority underlying the activity of that enterprise and public confidence in it, since even if justice is done, it is not seen to be done.

Or the relevant perceiving community may be the inmates themselves rather than the public at large: Richard Lippke writes that “[p]rivate prisons may add insult to injury and thus fuel social discontent, since it may not go unnoticed that such facilities, in effect, turn offenders into raw materials for corporate profit.” Similarly, Michael Walzer writes, “[t]he critical exposure is to profit-taking at the prisoners’ expense, and given the conditions under which they live, they are bound to suspect that they are regularly used and exploited.”

Though I’ve rebutted the “private purposes” argument above—public employees, too, are private people with their own purposes—that’s not important for the “public perception” argument. The “public perception” argument based on private purposes works even if people are quite wrong to perceive private prisons this way. The public perception might stem from an assessment of the empirical record of public vs. private prison management, or a prediction thereof—or it might not. But what’s relevant for this argument is people’s feelings about private prisons, not whether these feelings are correct. Indeed, let’s assume for now that the feeling has no empirical basis.

Or the difference in public perception may have nothing to do with any dislike of the private sector. Perhaps, as Michael O’Hare and his coauthors write, it’s merely a perception that public-sector action equals collective action while private-sector action doesn’t:

Public and private production differ in two primary ways. The first is that public actions have the authority, mandate, and consent of society as the consequence of collective choice; they are the concrete manifestation of what we want to do as a group. The second is that public actions serve a symbolic purpose; they are what we want to see ourselves choosing to do as a group. They are a significant part of what it means to be a political collectivity rather than an atomistic plurality.

The underlying argument, I’ve argued, is incorrect: public-sector action isn’t uniquely “us” acting because even employees are private agents working under contract. But again, what’s important for this argument isn’t whether its basis is correct but whether people think it to be correct.

Whether people’s (possibly uninformed or irrational) perceptions should have an independent effect on policy, beyond the effect of any underlying objective facts, is debated in many areas. For instance, in the area of risk regulation: If people systematically think harmless activities are harmful, should policy ignore such mistakes, perhaps because rational regulation should only responds to true risksor because it’s unjust to regulate people unless they impose true harms? Or, instead, should policy accept such “mistakes” as valid because even incorrect fears are real fears?

One can make the same sorts of arguments about whether privatization is appropriate in a society where people—without any reason grounded in real-world results—believe it to be inappropriate. I don’t need to resolve this question here, because subjective feelings have a real existence and are relevant in the real world. Institutions that are believed to be legitimate might be more effective in various ways; whether an institution is public or private affects people’s expectations of service;and expectations of service and even “mere” views on legitimacy affect people’s happiness, which is obviously relevant to consequentialists and can play a role in many other theories as well. Though it usually makes sense to assume that the government has access to the same technology as the private sector, in this case it would be as if the government had a special technology of “legitimacy” that couldn’t be fully transferred to the private sector—which would be an independent argument in favor of public provision.

At this point, our argument can move onto empirical ground, and we can look either at data on the importance of feelings of legitimacy for the effectiveness of institutions or at data on how unhappy people are at privatization.In any event, if we found that no one actually cares whether a service is privatized, that would presumably be a dispositive strike against a public perception objection. For instance, one can imagine a world where no one cares whether prisons are public or private. Perhaps we already live in such a world now, at least to some extent.Or perhaps any perceived illegitimacy of private prisons is merely a transitional concern, and people will come to think otherwise after enough experience with privatization. Perhaps the government could “imprint literally private acts with semantically public signifiance, as it has learned to do with private education (by accreditation, curriculum supervision, and the pledge of allegiance) and the private services of defense lawyers (by making them officers of the court).”It’s even possible that, if private prisons do an excellent job, people may come to think of private prisons as more legitimate.

Moreover, two can play at the symbol game: “A contract itself is a powerful symbol of legally enforceable obligations and responsibilities.” I don’t know of any studies testing the proposition as to public attitudes toward prisons,though apparently at least some prisoners don’t seem to care.

B. The Expressive Nature of Punishiment

So far, I’ve discussed arguments based on people’s (whether the general public’s or inmates’) subjective views of privatization; these arguments could, hypothetically, be conclusively rebutted by showing that no one cared whether prisons were public or private. Other arguments, though, don’t rest on subjective views, but argue that the social meaning of private provision is objective.

Mary Sigler takes this view explicitly. Criminal justice, she writes, is a

“moral dialogue” between citizens and the state as the legal embodiment of the political community. . . . Against the backdrop of the community’s norms and conventions, the social meaning of criminal conduct is objective, conveying disrespect for victims and contempt for community values regardless of the offender’s subjective motive or intent. Likewise, criminal punishment draws its meaning from the values of the community and its conventional forms of condemnatory expression. These reflect “deeply rooted public understandings” of particular modes of punishment that signify the gravity of criminal misconduct.


Because “certain forms of hard treatment have become the conventional symbols of public reprobation,” it is not enough to attend to the severity of punishment; we must also consider the mode of punishment as well. . . . [W]hat is heard “depends not just on the content of what is said, but on the context in which it is said, and the accent in which it is spoken.” Effective communication thus depends on the identity of the speaker as well as the identity of the listener, lest “some offenders . . . hear its voice, not as the voice of a community to which they belong and are treated as belonging, but as the voice of an alien and oppressive power . . . .” It must be “us against us” rather than “us against them.”

Privatization, then, is wrong because “[b]y privatizing punishment . . . , we terminate the dialogue between offenders and their community in just the same way as if we privatized prosecutors and criminal courts.” It can “easily . . . scramble[]” the message of punishment by

interpos[ing] a filter between the community and the offenders whom it calls to account. In particular, by transforming the institutions of punishment into commodities—fungible objects of economic exchange—privatization alters the character of punishment, reducing the punitive enterprise to a question of price point and logistics. It becomes a puzzle to be solved rather than a dialogue to be opened or renewed. For in the same way that “[t]he law and the courts speak and act in the name of the political community,” our conventions establish that our prisons do so as well. “That message ought to be conveyed by the offended community of law-abiding citizens, through its public agents, to the incarcerated individual.” As we distance ourselves from the condemnatory practice, however, we attenuate its message of censure, alienating offenders and ourselves from the meaning and value that constitute the liberal-democratic community.

Note, first, Sigler’s idea that private provision “interposes a filter” between the community and offenders by making prisoners into commodities and reduces punishment to a logistical enterprise. (Sigler finds this objectionable; on the other hand, former New York State Corrections Commissioner Thomas A. Coughlin III agrees that private prisons attenuate the moral condemnation of society, but believes this is an advantage in the case of juvenile facilities, where excessive stigma is inappropriate.)

Here, again, there is a mismatch between this critique and privatization. Perhaps it’s wrong to think of punishment in terms of logistics, but this is a critique of a particular way of thinking about prisoners, not a critique of privatization (even if the two might tend to go together). I’m sure one can find public Department of Corrections employees who are bean-counters, and private prison firm employees who take their correctional responsibilities seriously. DOCs, after all, deal with budgets and dollars and accounting, just like private firms, and even if privatization is taken off the table, nothing prevents the appointment of a DOC director committed to efficiency and cost-cutting. This is a variant of the “private purposes” argument that I’ve critiqued already.

But now let’s focus on whether her broader argument is subjective or objective. Despite the remark that the social meaning of criminal punishment is “objective,” note the contingent empirical (and possibly subjective-sounding) statements: “conventional forms of condemnatory expression,” “deeply rooted public understandings,” “conventional symbols,” whether “some offenders . . . hear its voice,” and whether the “message” is “scrambled” or “attenuate[d]” (which one might take to imply the recipient’s subjective failure to understand the true message). What if people just stop reading anything into the private nature of the prison, and start treating the mode of delivery as irrelevant?

Sigler notes the possibility, and clarifies that such “cultural change” should be “resist[ed].” This isn’t a matter of subjective perception, she stresses, but is inherent in liberal ideals:

To the extent that this is the case, it suggests how far we have strayed from the normative path of liberal-democratic meaning . . . [I]t is not a matter of indifference to us what course these changes take . . . . [T]he challenge is to make a case for meaning in terms of our liberal-democratic values and to promote or resist cultural change on that basis.

And how do “liberal-democratic values” support public provision?

[T]he communicative conception of punishment is predicated on precisely those features of the human condition—on our potential and our limitations—that ground our liberal-democratic commitments. There is thus nothing “mysterious” about the idea that it matters who inflicts punishment. For punishment engages fellow citizens in one of the most serious and definitive enterprises of a liberal-democratic community—holding ourselves and one another responsible for our actions—and the voice of the community is clearest when it speaks for itself.

But then we’re back to the familiar problem of what it means for the community to speak “for itself.” Given that the community needs an agent, and the available agents won’t work except by contract, we’re just talking about the community speaking through one form of contractor versus another.

In light of this, it’s apparent that Sigler’s argument is really about the virtues of “communicative . . . punishment”—perhaps a worthy correctional goal, but one that’s theoretically independent of the question of privatization.

Richard Lippke suggests another way in which prison privatization might be thought to run counter to a communicative theory of punishment. Under R.A. Duff’s theory, punishment must aim, through moral dialogue with the prisoner, at moral reform. Lippke suggests that “[i]nstead of being concerned about the moral well-being of offenders, a state that turns them over to private prisons may appear to be washing its hands of them.”But Lippke rejects this suggestion: the state could always require private prisons to educate offenders morally and award contracts based on success in meeting this requirement.Perhaps inmates might be less morally educable in private prisons because they “may wonder whether what they are compelled to do is for their own good . . . or is calculated to promote the bottom line of the corporations that own the facilities”; but Lippke notes (consistent with my argument) that public prison administrators and guards also have their own private interests, and in any event this is now an empirical question about prisoners’ subjective views of privatization. Lippke suggests that “inmates in private prisons might quickly lose sight of the profit-making aspect of such enterprises if they are treated well and provided opportunities to improve their lives.”

 C. Social Respect and Responsibility

We’ve seen earlier how the Israeli Supreme Court ruled that private prisons violate the constitutional right of personal liberty. The Court also had an alternative holding: that private prisons violate the separate constitutional right to human dignity. The idea of private purposes—which I’ve rebutted above—still made an appearance there, but the flavor was slightly different:

There is . . . an inherent and natural concern that imprisoning inmates in a privately managed prison that is run with a private economic purpose de facto turns the prisoners into a means whereby the corporation . . . makes a financial profit. . . . [T]he very existence of a prison that operates on a profit-making basis reflects a lack of respect for the status of the inmates as human beings, and this violation of the human dignity of the inmates does not depend on the extent of the violation of human rights that actually occurs behind the prison walls.

The Court noted that this claim didn’t depend on the inmate’s “subjective feelings”; being a means to a private firm’s profit-making is “an objective violation of [one’s] constitutional right to human dignity.”

But the Court went further than a mere private purposes argument. Private prisons, it said, violate human dignity because of “the social and symbolic significance of imprisonment in a privately managed prison.” Because there is a “social consensus” that private prisons “express disrespect,” the practice violates human dignity—“irrespective of the empirical data . . . (which may be the source of the symbolic significance), and irrespective of the specific intention of the party carrying out an act of that type in specific circumstances.”

The social consensus that supposedly underpins the expression of disrespect could be infinitely variable: the Court’s framework is similar to that of Geiza Vargas-Vargas, who argues against private prisons on the ground that, given the history of slavery, and given the prevalence of black men in prison, “[t]he joint venture [of prison privatization] has effectively reintroduced the policy of enslaving black men for profit.”

The Israeli Supreme Court had a different social consensus in mind, though: private imprisonment “expresses a divestment of a significant part of the state’s responsibility for the fate of the inmates, by exposing them to a violation of their rights by a private profit-making enterprise.”I’ve already questioned the “private purposes” argument above,but I’ve also granted that people’s views of the private sector can be legitimate to consider, even if those views are irrational. Even if the actor’s motivations are irrelevant, the perception of the meaning of private incarceration by members of the public is relevant.

Joseph Field takes a similar divestment line:

Prison privatization represents the government’s abdication of one of its most basic responsibilities to its people. . . . [It] can be viewed as a move by the government to detach itself from this responsibility for the sake of private values, including the profit motive. . . . Transferring the provision of corrections to the private sector is tantamount to transferring an important element of government responsibility. . . . Not only is corrections one of the government’s most basic responsibilities, it is probably the most sobering.

The theme is that the government must recognize the gravity of what it’s doing to the prisoner and respect him as a person, and that privatization is an impermissible distancing. Similarly, Ira Robbins writes, against prison privatization, that “the government should be obliged to know . . . that it is its brother’s keeper, even with all of its flaws.”And Michael Walzer writes: “It is in part because prisoners can’t form unions that we, who put them in prison, must accept responsibility for their treatment. How can we teach them their own responsibilities if we evade ours, leaving them to endure what is bound to feel like one more racket?”

I read these social meaning arguments as falling within the subjective category, which means that they’re amenable to (and can, conceivably, be disproven by) anthropological research regarding people’s actual views.

But not all the authors who take this approach are clear about whether the moral distancing is a subjective or objective matter. To the extent these views purport to be objectively based, it’s hard to see why going from one contract to another should be taken to imply moral distancing. Perhaps many past instances of contracting have in fact been motivated by a desire to not be involved anymore, or perhaps just by a desire to save money.But that desire can exist in the public sector too: I’ve already suggested the prospect of DOC directors and prison wardens who are committed to cutting costs. Moreover, many privatization theorists have advocated privatization precisely on the grounds that this will (or may) improve prison conditions, and various pro-privatization politicians have echoed these views.For them, the desire to privatize is precisely the opposite of moral distancing, at least if we take their claims at face value.

True, the Israeli Supreme Court has stated that the actor’s motivation is irrelevant given a social consensus in place, but at least the presence of contrary motivations in public discourse might make us think twice before asserting the existence of the consensus without having survey data in hand—much less striking down a statute on that basis!