My new post, Philosophical Objections to Prison Privatization: Israeli Supreme Court strikes down privatization statute on “liberty” and “dignity” grounds, is up on the Reason Foundation website. Here’s an excerpt:
This month is the fourth anniversary of an important date in privatization history. On November 19, 2009, in Academic Center of Law and Business, Human Rights Division v. Minister of Finance, the Israeli Supreme Court struck down a statute passed by the Knesset (the Israeli parliament) allowing for private prisons.
This opinion is interesting for Americans for a number of reasons. First, it held private prisons unconstitutional based on the most general of constitutional provisions, the rights to “liberty” and “dignity,” and based on very high-level political theory—rather than predictions about how the different sectors might violate inmates’ rights, which one would expect in the U.S. constitutional tradition. Second, the decision is part of an emerging series of recent rulings by foreign courts on private delegations of coercive power (see my October 2013 post about a decision by the German constitutional court). Third, the Israeli Supreme Court enjoys substantial respect in comparative constitutional law circles worldwide, so there’s a possibility that similar reasoning will spread to other countries.
. . .
The Israeli opinion is interesting both for what it might portend in other countries and as an example of the sort of high-level political-theory reasoning about privatization that seems foreign to the U.S. constitutional tradition.
Prison litigation is important in the U.S., but always in terms of instrumental concerns like the constitutional rights of prisoners and the accountability of prison authorities. Private prisons are considered state actors in the U.S., so public and private prisoners have all the same constitutional rights. (Which isn’t to say they always have the same remedies: see my May 2013 Annual Privatization